REGISTRATION RIGHTS AGREEMENT CIPHERGEN BIOSYSTEMS, INC. and The Initial Purchasers of Ciphergen Biosystems, Inc.’s Dated as of November 15, 2006
Exhibit 10.1
EXECUTION
COPY
CIPHERGEN BIOSYSTEMS, INC.
and
The Initial Purchasers of Ciphergen Biosystems, Inc.’s
7.00% CONVERTIBLE SENIOR NOTES DUE 2011
Dated as of November 15, 2006
REGISTRATION RIGHTS AGREEMENT, dated as of November 15, 2006 among Ciphergen Biosystems,
Inc., a Delaware corporation (together with any successor entity, herein referred to as the
“Company”), and the initial purchasers of the Company’s Notes (as such term is defined below) named
in Annex A hereto (each, and “Initial Purchaser,” and collectively, the “Initial Purchasers”) under
those separate Exchange Agreements (as defined below).
Pursuant to those certain Exchange Agreements, each dated as of November 3, 2006, between the
Company and each of the Initial Purchasers (collectively, the “Exchange Agreements”), the Initial
Purchasers have agreed to purchase from the Company a total of up to $16,500,000 in aggregate
principal amount of 7.00% Convertible Senior Notes Due 2011 (the “Notes”). The Notes will be
convertible into fully paid, nonassessable shares of common stock, no par value per share, of the
Company (the “Common Stock”). The Notes will be convertible on the terms, and subject to
the conditions, set forth in the Indenture (as defined herein).
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms shall have the
following meanings:
“Affiliate”: of any specified person means any other person which, directly or indirectly, is
in control of, is controlled by or is under common control with, such specified person. For
purposes of this definition, control of a person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such person whether by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agreement”: This Registration and Investor Rights Agreement.
“Amendment Effectiveness Deadline Date”: has the meaning set forth in Section 2(e) hereof.
“Blue Sky Application”: As defined in Section 6(a)(i) hereof.
“Business Day”: The definition of “Business Day” in the Indenture.
“Commission”: Securities and Exchange Commission.
“Common Stock”: As defined in the preamble hereto.
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“Company”: As defined in the preamble hereto.
“▇▇▇▇▇”: Electronic Data Gathering and Retrieval System.
“Effectiveness Period”: As defined in Section 2(a)(iii) hereof.
“Effectiveness Target Date”: As defined in Section 2(a)(ii) hereof.
“Exchange Act”: Securities Exchange Act of 1934, as amended.
“Exchange Agreements”: As defined in the preamble hereto.
“Holder”: A Person who owns, beneficially or otherwise, Transfer Restricted Securities.
“Indemnified Holder”: As defined in Section 6(a) hereof.
“Indenture”: The Indenture, dated as of November 15, 2006 between the Company and U.S. Bank
National Association, as trustee (the “Trustee”), pursuant to which the Notes are to be issued, as
such Indenture is amended, modified or supplemented from time to time in accordance with the terms
thereof.
“Initial Purchasers”: As defined in the preamble hereto.
“Liquidated Damages”: As defined in Section 3(a) hereof.
“Majority of Holders”: Holders holding over 50% of the aggregate principal amount of Notes
outstanding; provided that, for the purpose of this definition, a holder of shares of Common Stock
which constitute Transfer Restricted Securities and issued upon conversion of the Notes shall be
deemed to hold an aggregate principal amount of Notes (in addition to the principal amount of Notes
held by such holder) equal to the product of (x) the number of such shares of Common Stock held by
such holder and (y) the conversion rate in effect at the time of such conversion as determined in
accordance with the Indenture.
“NASD”: National Association of Securities Dealers, Inc.
“Notes”: As defined in the preamble hereto.
“Notice Holder”: means, on any date, any Holder that has delivered a Selling Securityholder
Questionnaire to the Company on such date.
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“Person”: An individual, partnership, corporation, company, unincorporated organization,
trust, joint venture or a government or agency or political subdivision thereof.
“Prospectus”: The prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such prospectus.
“Registration Default”: As defined in Section 3(a) hereof.
“Securities Act”: Securities Act of 1933, as amended.
“Selling Securityholder Questionnaire”: means a written notice executed by the respective
Holder and delivered to the Company containing substantially the information called for by the
Selling Securityholder Questionnaire attached as Annex B hereto.
“Shelf Filing Deadline”: As defined in Section 2(a)(i) hereof.
“Shelf Registration Statement”: As defined in Section 2(a)(i) hereof.
“Suspension Notice”: As defined in Section 4(c) hereof.
“Suspension Period”: As defined in Section 4(b)(i) hereof.
“TIA”: Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder, in each case, as in effect on the date the Indenture is qualified under the
TIA.
“Transfer Restricted Securities”: Each Note and each share of Common Stock issued upon
conversion of Notes until the earlier of:
(i) the date on which such Note or such share of Common Stock issued upon conversion
has been effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement;
(ii) the date on which such Note or such share of Common Stock issued upon conversion
is transferred in compliance with Rule 144 under the Securities Act or may be sold or
transferred by a person who is not an affiliate of the Company pursuant to Rule 144(k)
under the Securities Act (or any other similar provision then in force); or
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(iii) the date on which such Note or such share of Common Stock issued upon
conversion ceases to be outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).
Unless the context otherwise requires, the singular includes the plural, and words in the
plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) use its reasonable best efforts to cause to be filed as promptly as
practicable, but in any event not later than 30 days after the date hereof (the
“Shelf Filing Deadline”), a registration statement on Form S-3 (the “Shelf
Registration Statement”), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities held by Holders that have provided
the information required pursuant to the terms of Section 2(b) hereof (in the
event that Form S-3 is unavailable for such a registration, the Company shall
use such other form as is available for such a registration on another
appropriate form; provided, that the Company shall undertake to register the
Transfer Restricted Securities on Form S-3 as soon as such form is available,
provided, further, that the Company shall maintain the effectiveness of the
Shelf Registration Statement then in effect until such time as a Shelf
Registration Statement on Form S-3 covering the Transfer Restricted Securities
has been declared effective by the SEC);
(ii) use its reasonable efforts to cause the Shelf Registration Statement
to be declared effective by the Commission not later than: (a) if the Shelf
Registration Statement receives a “no-review” status from the Commission, 90
days after the date hereof, or (b) if the Shelf Registration Statement is
reviewed by the Commission, 120 days after the date hereof (the “Effectiveness
Target Date”); and
(iii) subject to Section 4(b)(i) hereof, use its reasonable efforts to keep
the Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the extent
necessary to ensure that (A) it is available for resales by the Holders of
Transfer
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Restricted Securities entitled, subject to Section 2(b), to the benefit of
this Agreement and (B) conforms with the requirements of this Agreement and the
Securities Act and the rules and regulations of the Commission promulgated
thereunder as announced from time to time, for a period (the “Effectiveness
Period”) until the earliest of:
(1) two years following the date hereof;
(2) the date when the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately without restriction pursuant to Rule
144(k) under the Securities Act or any successor rule thereto;
or
(3) the date when all of the Transfer Restricted
Securities are registered under the Shelf Registration
Statement and disposed of in accordance with the Shelf
Registration Statement.
(b) At the time the Shelf Registration Statement is declared effective, each Holder
that became a Notice Holder on or prior to the date five (5) Business Days prior to such
time of effectiveness shall be named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder to deliver
such Prospectus to purchasers of Transfer Restricted Securities in accordance with
applicable law. None of the Company’s security holders (other than the Holders of
Transfer Restricted Securities) shall have the right to include any of the Company’s
securities in the Shelf Registration Statement.
(c) If the Shelf Registration Statement ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Transfer Restricted
Securities registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Transfer Restricted Securities), the Company shall use its
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within fifteen (15) days of such cessation
of effectiveness amend the Shelf Registration Statement in a manner reasonably expected to
obtain the withdrawal of the order suspending the effectiveness thereof.
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(d) The Company shall supplement and amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement, if required by the Securities
Act or as reasonably requested by the Holders or by the Trustee on behalf of the Holders
of the Transfer Restricted Securities covered by such Shelf Registration Statement.
(e) Each Holder agrees that if such Holder wishes to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement and related Prospectus, it will do
so only in accordance with this Section 2(e) and Section 4(b). Each Holder wishing to
sell Transfer Restricted Securities pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a Selling Securityholder Questionnaire to the Company at
least five (5) Business Days prior to the effectiveness of the Shelf Registration
Statement. From and after the date the Shelf Registration Statement is declared
effective, the Company shall, within a reasonably practicable period of time after the
date a Selling Securityholder Questionnaire is delivered, and in any event within the
later of ten (10) Business Days after such date or ten (10) Business Days after the
expiration of the Suspension Period (1) in effect when the Notice and Questionnaire is
delivered or (2) put into effect within ten (10) Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
required document so that the Holder delivering such Selling Securityholder
Questionnaire is named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Transfer Restricted Securities
in accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use its reasonable
efforts to cause any such post-effective amendment to be declared effective
under the Securities Act as promptly as is practicable, but in any event by the
date (the “Amendment Effectiveness Deadline Date”) that is thirty (30) days
after the date such post-effective amendment is filed; and
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(ii) notify such Holder as promptly as practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to
Section 2(e)(i);
provided that if such Selling Securityholder Questionnaire is delivered during a Suspension Period,
the Company shall so inform the Holder delivering such Selling Securityholder Questionnaire and
shall take the actions set forth in clauses (i) and (ii) above upon expiration of the Suspension
Period in accordance with Section 4(b). Notwithstanding anything contained herein to the contrary,
(i) the Company shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten (10) Business Days from the expiration
of a Suspension Period (and the Company shall incur no obligation to pay Liquidated Damages during
such extension) if such Suspension Period shall be in effect on the Amendment Effectiveness
Deadline Date; and provided further, that after the date of effectiveness of the Shelf Registration
Statement, the Company shall not be obligated to file more than one post-effective amendment in any
60-day period (measured from the date any previous post-effective amendment has been filed, or in
the case of the first post-effective amendment, the date the first Selling Securityholder
Questionnaire is delivered to the Company after the date of effectiveness) for the purpose of
naming Holders as selling securityholders who were not so named in the Shelf Registration Statement
at the time of effectiveness.
3. Liquidated Damages.
If:
(i) the Shelf Registration Statement is not filed with the Commission prior
to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared effective by
the Commission prior to or on the Effectiveness Target Date;
(iii) the Company has failed to perform its obligations set forth in
Section 2(e) within the time period required therein;
(iv) any post-effective amendment to a Shelf Registration filed pursuant to
Section 2(e)(i) has not become
effective under the Securities Act on or prior to the Amendment
Effectiveness Deadline Date;
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(v) except as provided in Section 4(b)(i) hereof, the Shelf Registration
Statement is filed and declared effective but, during the Effectiveness Period,
shall thereafter cease to be effective or fail to be usable for its intended
purpose; or
(vi) (A) prior to or on the 30th under the provisions of Section 4(b), of
any Suspension Period, such suspension has not been terminated or (B) Suspension
Periods exceed an aggregate of 60 days in any 360 day period,
(each such event referred to in foregoing clauses (i) through (v), a “Registration Default”), the
Company hereby agrees to pay interest as partial relief for the damages (“Liquidated Damages”) with
respect to the Transfer Restricted Securities from and including the day following the Registration
Default to but excluding the earlier of (1) the day on which the Registration Default has been
cured and (2) the date the Shelf Registration Statement is no longer required to be kept effective,
in an amount in cash equal to one and one-half percent (1.5%) of the aggregate outstanding
principal amount of Notes on each of the following days: (i) the day of the Registration Default
and on every thirtieth day (pro rated for periods totaling less than thirty days) thereafter until
such Registration Default is cured; provided that in no event shall Liquidated Damages exceed 10%
of the Holder’s initial investment in the Notes in the aggregate and provided, further, that
Liquidated Damages shall only accrue with respect to clauses (iii) and (iv) above with respect to
Notes for which the Company has failed to perform its obligations under Section 2(e) above, and
with respect to clauses (v) and (vi) above only for Notes for which a Holder is named as a selling
securityholder on the Shelf Registration Statement. Liquidated Damages shall be paid within five
(5) Business Days of the day of the Registration Default, and thereafter on the earlier of (I) the
last day of the calendar month during which such Liquidated Damages are incurred and (II) the third
Business Day after the event or failure giving rise to the Liquidated Damages is cured. In the
event the Company fails to pay Liquidated Damages in a timely manner, such Liquidated Damages shall
bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial
months) until paid in full.
All obligations of the Company set forth in this Section 3 that are outstanding with respect
to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time
as all such obligations with respect to such Transfer Restricted Security shall have been
satisfied in full.
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Nothing shall preclude a Holder from pursuing or obtaining any other remedies at law or in
equity, including specific performance, with respect to this Agreement.
The parties hereto agree that the liquidated damages provided for in this Section 3
constitutes a reasonable estimate of the damages that may be incurred by Holders of Transfer
Restricted Securities by reason of the failure of the Shelf Registration Statement to be filed or
declared effective or available for effecting resales of Transfer Restricted Securities in
accordance with the provisions hereof.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company shall comply
with all the provisions of Section 4(b) hereof and shall prepare and file with the
Commission a Shelf Registration Statement relating to the registration on any appropriate
form under the Securities Act in accordance with Section 2 hereof; provided that before
filing any Shelf Registration Statement or Prospectus or any amendments or supplements
(other than a prospectus supplement filed solely to update the selling securityholder
information in the Prospectus) thereto with the SEC, the Company shall furnish to the
Holders and counsel for the Holders copies of all such documents proposed to be filed
which documents (other than a prospectus supplement filed solely to update the selling
securityholder information in the Prospectus) will be subject to the review of such
counsel for a period of three (3) Business Days, and the Company will not file the Shelf
Registration Statement or Prospectus or any amendment or supplement thereto (other than
documents incorporated by reference) to which such counsel shall reasonably object within
three (3) Business Days after the receipt thereof.
(b) In connection with the Shelf Registration Statement and any Prospectus required
by this Agreement to permit the sale or resale of Transfer Restricted Securities, the
Company shall:
(i) Subject to any notice by the Company in accordance with this Section
4(b) of the existence of any fact or event of the kind described in Section
4(b)(iii)(D), use its reasonable efforts to keep the Shelf Registration
Statement continuously effective during the Effectiveness Period; upon the
occurrence of any event that would cause the Shelf Registration Statement
or the Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and
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usable for resale of Transfer Restricted
Securities during the Effectiveness Period, the Company shall file promptly an
appropriate amendment to the Shelf Registration Statement, a supplement to the
Prospectus or a report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either clause (A) or (B),
use its reasonable efforts to cause such amendment to be declared effective and
the Shelf Registration Statement and the related Prospectus to become usable for
resale of Transfer Restricted Securities during the Effectiveness Period as soon
as practicable thereafter. Notwithstanding the foregoing, the Company may
suspend the use of the Prospectus and may elect to suspend the effectiveness of
the Shelf Registration Statement by written notice to the Holders for a period
not to exceed an aggregate of 30 days in any 90-day period (each such period, a
“Suspension Period”) if:
(x) an event occurs and is continuing as a result of which
the Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein would, in the Company’s judgment, 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
(y) the Company determines in good faith that the
disclosure of such event at such time would be seriously
detrimental to the Company and its subsidiaries;
provided, however, that Suspension Periods shall not exceed an aggregate of 60
days in any 360-day period. The Company shall not be required to specify in the
written notice to the Holders the nature of the event giving rise to the
Suspension Period and the Company agrees that it will not specify in the written
notice to the Holders any material non-public information.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf
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Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in the Shelf Registration Statement or supplement to
the Prospectus.
(iii) Advise the selling Holders promptly and, if requested by such selling
Holders, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment thereto,
when the same has become effective;
(B) of any request by the Commission or any other federal or
state governmental authority for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto;
(C) of the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the
effectiveness of the Shelf Registration Statement under the Securities
Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes;
(D) of the receipt by the Company of any notification with
respect to the suspension of the
qualification or exemption from qualification of any of the
Transfer Restricted Securities for sale in any
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jurisdiction or the initiation or threatening of any
proceeding for such purpose; or
(E) of the existence (but not the substance) of any fact, other
than material non-public information, or the happening of any event
during the Effectiveness Period, that makes any statement of a
material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company shall use its
reasonable efforts to obtain the withdrawal or lifting of such order at the
earliest possible time and will provide to each Holder who is named in the Shelf
Registration Statement prompt notice of the withdrawal of any such order.
(iv) Make available at reasonable times for inspection by one or more
representatives of the selling Holders, and one attorney or accountant retained
by such selling Holders, all financial and other records, pertinent corporate
documents and properties of the Company as shall be reasonably necessary to
enable them to conduct a reasonable investigation within the meaning of Section
11 of the Securities Act, and cause the Company’s officers, directors, managers
and employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, attorney or accountant
in connection therewith; provided, however, that the Company shall have no
obligation to deliver information to any selling Holder or representative
pursuant to this Section 4(b)(iv) unless such selling Holder or representative
shall have executed and delivered a
confidentiality agreement in a form reasonably acceptable to the Company
relating to such information.
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(v) If requested by any selling Holders, promptly incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders may reasonably
request to have included therein, including, without limitation, information
relating to the “Plan of Distribution” and “Selling Securityholders” of the
Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon such Holder’s written request,
without charge, at least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits incorporated
in such exhibits by reference) as such Person may request).
(vii) Deliver to each selling Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to any notice
by the Company in accordance with this Section 4(b) of the existence of any fact
or event of the kind described in Section 4(b)(iii)(D) or 4(b)(i), the Company
hereby consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders in connection with the offering and the
sale of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
(viii) Before any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions in the United States as the
selling Holders may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (A) to register or
qualify as a foreign corporation or a dealer of securities where it is not now
so qualified or to take any action that would subject it to the service
of process in any jurisdiction where it is not now so subject or (B) to
subject itself to general or unlimited service of process or to taxation in any
such jurisdiction if it is not now so subject.
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(ix) Cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends (unless required
by applicable securities laws); and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the Holders may
reasonably request at least two (2) Business Days before any sale of Transfer
Restricted Securities made by such Holders.
(x) Subject to Section 4(b)(i) hereof and the provision in clause (viii)
above, use its reasonable efforts to cause the Transfer Restricted Securities
covered by the Shelf Registration Statement to be registered with or approved by
such other U.S. governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or event contemplated
by Section 4(b)(iii)(D) hereof shall exist or have occurred, use its reasonable
efforts to prepare a supplement or post-effective amendment to the Shelf
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not misleading.
(xii) Provide CUSIP numbers for all Transfer Restricted Securities not
later than the effective date of the Shelf Registration Statement and provide
the Trustee under the Indenture with certificates for the Notes that are in a
form eligible for deposit with The Depository Trust Company.
(xiii) Subject to Section 4(b)(i) hereof, otherwise use its reasonable
efforts to comply with all applicable rules and
regulations of the Commission and all reporting requirements under the
rules and regulations of the Exchange Act.
(xiv) Cause the Indenture to be qualified under the TIA not later than the
effective date of the Shelf Registration
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Statement required by this Agreement,
and, in connection therewith, cooperate with the Trustee and the holders of
Notes to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use its reasonable efforts to cause the Trustee thereunder to
execute all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner.
(xv) Cause all Common Stock covered by the Shelf Registration Statement to
be listed or quoted, as the case may be, on each securities exchange or
automated quotation system on which Common Stock is then listed or quoted, if
any.
(xvi) Provide to each Holder upon written request each document filed with
the Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act after the effective date of the Shelf Registration Statement,
unless such document is available through the Commission’s ▇▇▇▇▇ system.
(xvii) Comply with all applicable rules and regulations of the Commission
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Shelf Registration Statement, which
statements shall cover said 12-month periods.
(c) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice (a “Suspension Notice”) from the Company of the existence of any
fact of the kind described in Section 4(b)(iii)(D) or 4(b)(i) hereof, such Holder will
forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until:
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(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Transfer Restricted Securities that was current at the time
of receipt of such Suspension Notice.
(d) Each Holder agrees, by acquisition of the Transfer Restricted Securities, that no
Holder shall be entitled to sell any of such Transfer Restricted Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Selling Securityholder Questionnaire as required pursuant to
Section 2(e) hereof (including the information required to be included in such Selling
Securityholder Questionnaire) and the information set forth in the next sentence. Each
Notice Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company by such
Notice Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Transfer Restricted Securities. Any sale of any Transfer
Restricted Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue statement of a
material fact relating to or provided by such Holder or its plan of distribution and that
such Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which they were
made, not misleading.
5. Registration Expenses.
- 16 -
All expenses incident to the Company’s performance of or compliance with this Agreement shall
be borne by the Company regardless of whether a Shelf Registration Statement becomes effective,
including, without limitation:
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state
Blue Sky or securities laws;
(iii) all expenses of printing (including printing of Prospectuses and
certificates for the Common Stock to be issued upon conversion of the Notes) and
the Company’s expenses for messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company;
(v) all reasonable fees and disbursements of one counsel chosen by the
Holders of a majority of Transfer Restricted Securities;
(vi) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities exchange or
automated quotation system pursuant to the requirements hereof, if any; and
(vii) all fees and disbursements of independent certified public
accountants of the Company.
The Company shall bear its internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal, accounting or other duties), the
expenses of any annual audit and the fees and expenses of any Person, including special experts,
retained by the Company.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Holder of Transfer
Restricted Securities, such Holder’s directors, officers, members, agents, and employees
and each person, if any, who controls any such Holder within the meaning of the Securities
Act (each, an “Indemnified Holder”), against any loss, claim, damage, liability,
action, cost or expense, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability,
- 17 -
action, cost or expense relating
to resales of the Transfer Restricted Securities), to which such Indemnified Holder may
become subject, insofar as any such loss, claim, damage, liability, action, cost or
expense arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a material fact
contained in (A) the Shelf Registration Statement as originally filed or in any
amendment thereof, in any Prospectus, or in any amendment or supplement thereto
or (B) any blue sky application or other document or any amendment or supplement
thereto prepared or executed by the Company (or based upon written information
furnished by or on behalf of the Company expressly for use in such blue sky
application or other document or amendment on supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the
Transfer Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a “Blue Sky
Application”); or
(ii) the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
and agrees to reimburse each Indemnified Holder promptly upon demand for any legal or
other expenses reasonably incurred by such Indemnified Holder in connection with
investigating, defending, settling, compromising or paying any such loss, claim, damage,
liability, action, cost or expense; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage, liability,
action, cost or expense arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such Holder (or its
related Indemnified Holder) specifically for use therein. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify and hold harmless the
Company, its directors, officers and employees and each person, if any, who controls the
Company within the meaning of the Securities Act to the same extent as the foregoing
indemnity from the
- 18 -
Company to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company by or on behalf of such
Holder specifically for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement set forth in this Section shall be in addition to any
liabilities which any such Holder may otherwise have. In no event shall any Holder, its
directors, officers or any person who controls such Holder be liable or responsible for
any amount in excess of the amount by which the net proceeds received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Shelf Registration
Statement exceeds the amount of any damages that such Holder, its directors, officers or
any person who controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 6, notify
the indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent it has been
materially prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 6. If any such claim or action is
brought against an indemnified party, and it notifies the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified party under
this Section 6 for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of investigation;
provided, however, that the indemnified party shall have the right to employ a separate
counsel to represent such indemnified party and its officers, employees and controlling
persons who
may be subject to liability arising out of any claim in respect of which indemnity
may be sought by the indemnified parties against the indemnifying party under this Section
6 (i) if the indemnifying party has failed within a reasonable time after receipt of
notice to assume defense of a proceeding to retain counsel reasonably satisfactory to the
indemnified
- 19 -
party and (ii) if the indemnified party shall have been advised by legal
counsel that there may be one or more legal defenses available to such indemnified party
and their respective officers, employees and controlling persons that are different from
or additional to those available to the indemnifying party, and in that event, the fees
and expenses of such separate counsel shall be paid by the indemnifying party. No
indemnifying party shall:
(i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld) settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action), unless such settlement, compromise
or consent includes an unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss of liability by
reason of such settlement or judgment in accordance with this Section 6.
(d) The indemnifying party under this Section shall not be liable for any settlement
of any proceeding effected without its written consent, which shall not be withheld
unreasonably, but if settled with such consent or if there is a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party against any
loss, claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
validly requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by
Section 6(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid valid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such valid request prior to the date of such
settlement.
- 20 -
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment
in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent
(x) includes an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding and (y) does not
include a statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 6 shall for any reason be
unavailable or insufficient to hold harmless an indemnified party under Section 6(a) or
6(b) in respect of any loss, claim, damage or liability (or action in respect thereof)
referred to therein, each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company from the offering and sale of the Transfer Restricted
Securities on the one hand and a Holder with respect to the sale by such Holder
of the Transfer Restricted Securities on the other, or
(ii) if the allocation provided by Section (6)(e)(i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in Section 6(e)(i) but also the relative fault of
the Company on the one hand and the Holders on the other in connection with the
statements or omissions or alleged statements or alleged omissions that resulted
in such loss, claim, damage or liability (or action in respect thereof), as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on the other
with respect to such offering and such sale shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes purchased under the Exchange
Agreements (before deducting expenses) received by the Company, on the one hand, bear to
the net proceeds received by such Holder with respect to its sale of
- 21 -
Transfer Restricted
Securities on the other. The relative fault of the parties shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by
the Company on the one hand or the Holders on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be just and
equitable if the amount of contribution pursuant to this Section 6(e) were determined by
pro rata allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph (e).
The amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this Section 6
shall be deemed to include, for purposes of this Section 6, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or
defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be required to
contribute any amount in excess of the amount by which the net proceeds received by such
Holder with respect to its sale of Transfer Restricted Securities exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute as provided in this Section
6(d) are several and not joint.
(f) The provisions of this Section 6 shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the Company or any
of the officers, directors or controlling
persons referred to in Section 6 hereof, and will survive the sale by a Holder of
Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the Company (i) is not
subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request of any Holder,
to such Holder or
- 22 -
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby in a
timely manner in order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by the Company to
comply with its obligations under Section 2 hereof may result in material irreparable
injury to the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely, and that, in the event of any
such failure, any Holder may seek such relief as may be required to specifically enforce
the Company’s obligations under Section 2 hereof.
(b) No Inconsistent Agreements. The Company will not on or after the date hereof,
enter into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the provisions
hereof. In addition, the Company shall not grant to any of its securityholders (other
than the Holders of Transfer Restricted Securities in such capacity) the right to include
any of its securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. The Company has not previously entered
into any agreement (which has not expired or been terminated) granting any registration
rights with respect to its securities to any Person, which rights conflict with the
provisions hereof.
(c) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not
be given, unless the
Company has obtained the written consent of a Majority of Holders. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof, with respect to a
matter, which relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Shelf Registration Statement and does not directly or indirectly adversely
affect the rights of other Holders, may be given by the Majority Holders,
- 23 -
determined on
the basis of Notes being sold rather than registered under such Shelf Registration
Statement.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail (registered or
certified, return receipt requested), telex, facsimile transmission, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture or the transfer agent of the Common Stock, as the
case may be
With, in the case of notice to Highbridge International LLC, a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.; and
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.; and
(ii) if to the Company, initially at its address set forth in the Exchange
Agreements,
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being deposited
in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if
transmitted by facsimile; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
- 24 -
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including
without limitation and without the need for an express assignment, subsequent Holders of
Transfer Restricted Securities, provided, however, that nothing contained herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms of the Exchange Agreements or the Indenture. If any
transferee of any Holder shall acquire Transfer Restricted Securities, in any manner,
whether by operation of law or otherwise, such Transfer Restricted Securities shall be
held subject to all the terms of this Agreement except for Section 8 hereof, and by taking
and holding such Transfer Restricted Securities such person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of this
Agreement.
(f) 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.
(g) Notes Held by the Company or Their Affiliates. Whenever the consent or approval
of Holders of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its Affiliates (other
than subsequent Holders if such subsequent Holders are deemed to be Affiliates solely by
reason of their holding of such Notes) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in accordance
with the law of the State of New York without regard to conflict of law principles that
would result in the application of
any law other than the law of the State of New York. Each party hereby irrevocably
submits to the jurisdiction of the state and federal courts sitting in The City of New
York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or
- 25 -
proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(j) Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired thereby, it
being intended that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.
(k) Independent Nature of Holders’ Obligations and Rights. The obligations of each
Holder under this Agreement are several and not joint with the obligations of any other
Holder, and no Holder shall be responsible in any way for the performance of the
obligations of any other Holder under this Agreement. Nothing contained herein, and no
action taken by any Holder pursuant hereto, shall be deemed to constitute the
Holder as a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Holders are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this Agreement. Each
Holder confirms that it has independently participated in the negotiation of the
transaction contemplated hereby with the advice of its own counsel and advisors. Each
Holder shall be entitled to independently protect and enforce its
- 26 -
rights, including,
without limitation, the rights arising out of this Agreement, and it shall not be
necessary for any other Holder to be joined as an additional party in any proceeding for
such purpose.
(l) Entire Agreement. This Agreement, together with the Exchange Agreements and the
Indenture, 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. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred
to herein with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
- 27 -
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| CIPHERGEN BIOSYSTEMS, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. Page | |||
| Name: | ▇▇▇▇ ▇. Page | |||
| Title: | President and Chief Executive Officer | |||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| HIGHBRIDGE INTERNATIONAL LLC | ||||||
| By: HIGHBRIDGE CAPITAL MANAGEMENT, LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇. Chill | |||||
| ▇▇▇▇ ▇. Chill, Managing Director | ||||||
| DEERFIELD INTERNATIONAL LIMITED | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Title: | CFO | |||||
| DEERFIELD PARTNERS, L.P. | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Title: | CFO | |||||
| ▇▇▇▇▇ FUNDS, INC. | ||||||
| By: | /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: | R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Title: | Secretary | |||||
| PROFESSIONAL LIFE & CASUALTY | ||||||
| By: | /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: | R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Title: | Director | |||||
ANNEX A
LIST OF INITIAL PURCHASERS
| Name of Initial Purchaser | Principal Amount of Notes | |||
Highbridge International LLC |
$ | 11,100,000 | ||
Deerfield International Limited |
$ | 1,560,000 | ||
Deerfield Partners, L.P. |
$ | 1,440,000 | ||
▇▇▇▇▇ Fund, Inc. |
$ | 1,800,000 | ||
Professional Life & Casualty |
$ | 600,000 | ||
ANNEX B
SELLING SECURITYHOLDER QUESTIONNAIRE
The undersigned beneficial owner (the “Selling Securityholder”) of the 7.00% Convertible
Senior Notes due 2011 (the “Notes”) of Ciphergen Biosystems, Inc. (the “Company”) or the shares of
the Company’s Common Stock, par value $0.001 per share, issuable upon conversion of the Notes (the
“Common Stock” and, together with the Notes, the “Registrable Securities”) hereby gives notice to
the Company of its intention to sell or otherwise dispose of Registrable Securities beneficially
owned by it and listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this Selling
Securityholder Questionnaire, understands that it will be bound by the terms and conditions of this
Selling Securityholder Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed to indemnify and
hold harmless the Company’s directors, the Company’s officers and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), from and against certain losses
arising in connection with statements concerning the undersigned made in the Shelf Registration
Statement or the related prospectus in reliance upon the information provided in this Selling
Securityholder Questionnaire. The undersigned hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons set forth therein.
The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate and complete:
(1)
|
(a) | Full Legal Name of Selling Securityholder: | ||
| (b) | Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities listed in (3) below are held: | |||
| (c) | Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) through which Registrable Securities listed in (3) below are held: | |||
| (2) | Address for Notices to Selling Securityholder: | |||
| Telephone (including area code): | ||||
| Fax (including area code): | ||||
| Contact Person: | ||||
| (3) | Beneficial Ownership of Registrable Securities: | |||
| (a) | Type and Principal Amount/Number of Registrable Securities beneficially owned: | |||
| (b) | CUSIP No(s). of such Registrable Securities beneficially owned: | |||
| (4) | Beneficial Ownership of Other Securities of the Company Owned by the Selling Securityholder: | |||
| Except as set forth below in this Item (4), the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item (3). | ||||
| (a) | Type and Amount of Other Securities beneficially owned by the Selling Securityholder: | |||
| (b) | CUSIP No(s). of such Other Securities beneficially owned: | |||
| (5) | Relationship with the Company: | |||
| Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. | ||||
| State any exceptions here: | ||||
| (6) | Is the Selling Securityholder a registered broker-dealer? | |||
| Yes | o | |||||||
| No | o | |||||||
| If “Yes”, please answer subsection (a) and subsection (b): | ||||||||
| (a) | Did the Selling Securityholder acquire the Registrable Securities as compensation for underwriting/broker-dealer activities to the Company? | |||||||
| Yes | o | |||||||
| No | o | |||||||
| (b) | If you answered “No” to question 6(a), please explain your reason for acquiring the Registrable Securities: | |||||||
| (7) | Is the Selling Securityholder an affiliate of a registered broker-dealer? | |||||||
| Yes | o | |||||||
| No | o | |||||||
| If “Yes”, please identify the registered broker-dealer(s), describe the nature of the affiliation(s) and answer subsection (a) and subsection (b): | ||||||||
| (a) | Did the Selling Securityholder purchase the Registrable Securities in the ordinary course of business (if no, please explain)? | |||||||
| Yes | o | |||||||
| No | o Explain: | |||||||
| (b) | Did the Selling Securityholder have an agreement or understanding, directly or indirectly, with any person to distribute the Registrable Securities at the same time the Registrable Securities were originally purchased (if yes, please explain)? | |||||||
| Yes | o Explain: | |||||||
| No | o | |||||||
| (8) | Is the Selling Securityholder a non-public entity? | |||||||
| Yes | o | |||||||
| No | o | |||||||
| If “Yes”, please answer subsection (a): | ||||||||
| (a) Identify the natural person or persons that have voting or investment control over the Registrable Securities that the non-public entity owns: | ||||||||
| (9) | Plan of Distribution: | |||||||
| Except as set forth below, the undersigned Selling Securityholder (including its donees and pledgees) intends to distribute the Registrable Securities listed above in Item (3) pursuant to the Shelf Registration Statement only as follows (if at all): Such Registrable Securities may be sold from time to time directly by the undersigned Selling Securityholder or, alternatively, in accordance with the Registration Rights Agreement, through underwriters, broker-dealers or agents. If the Registrable Securities are sold through underwriters or broker-dealers, the Selling Securityholders will be responsible for underwriting discounts or commissions or agent commissions. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve cross or block transactions) (i) on any national securities exchange or quotation service on which the Registrable Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Registrable Securities or otherwise, the undersigned Selling Securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Securities in the course of hedging positions they assume. The undersigned Selling Securityholder may also sell Registrable Securities short and deliver Registrable Securities to close out short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities. | ||||||||
| State any exceptions here: | ||||||||
Note: In no event will such method(s) of distribution take the form of an underwritten offering of the Registrable Securities without the
prior agreement of the Company.
The undersigned Selling Securityholder acknowledges that it understands its obligations to
comply with the provisions of the Securities Exchange Act of 1934, as amended, and the rules
thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor
rules or regulations), in connection with any offering of Registrable Securities pursuant to the
Shelf Registration Agreement. The undersigned agrees that neither it nor any person acting on its
behalf will engage in any transaction in violation of such provisions.
Pursuant to the Registration Rights Agreement, the Company has agreed under certain
circumstances to indemnify the Selling Securityholder against certain liabilities.
In the event the undersigned transfers all or any portion of the Registrable Securities listed
in Item (3) above after the date on which such information is provided to the Company other than
pursuant to the Shelf Registration Statement, the undersigned agrees to notify the transferee(s) at
the time of the transfer of its rights and obligations under this Selling Securityholder
Questionnaire and the Registration Rights Agreement.
In accordance with the undersigned’s obligation under the Registration Rights Agreement to
provide such information as may be required by law or by the staff of the Commission for inclusion
in the Shelf Registration Statement, the undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may occur subsequent to the date
hereof at anytime while the Shelf Registration Statement remains effective. All notices hereunder
and pursuant to the Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery to the address set forth below.
By signing below, the undersigned consents to the disclosure of the information contained
herein in its answers to Items (1) through (9) above and the inclusion of such information in the
Shelf Registration Statement and the related prospectus. The undersigned understands that such
information will be relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
Once this Selling Securityholder Questionnaire is executed by the undersigned and received by
the Company, the terms of this Selling Securityholder Questionnaire, and the representations,
warranties and agreements contained herein, shall be binding on, shall inure to the benefit of and
shall be enforceable by the respective successors, heirs, personal representatives, and assigns of
the Company and the undersigned with respect to the Registrable Securities beneficially owned by
the undersigned and listed in Item (3) above. This Selling Securityholder Questionnaire shall be
governed in all respects by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Selling
Securityholder Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Dated:
|
||||||
| Beneficial Owner | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
PLEASE RETURN THE COMPLETED AND EXECUTED SELLING
SECURITYHOLDER QUESTIONNAIRE TO THE COMPANY AT:
SECURITYHOLDER QUESTIONNAIRE TO THE COMPANY AT:
CIPHERGEN BIOSYSTEMS, INC.
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