EXHIBIT 99.7
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of August 31, 2006, by and between Clinical Data, Inc., a Delaware
corporation (the "Company"), and Laurus Master Fund, Ltd. (the "Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement, dated
as October 19, 2004 and amended and restated as of the date hereof, among the
Purchaser, Icoria, Inc. and the Company (as amended, modified or supplemented
from time to time, the "Securities Purchase Agreement"), and pursuant to the
Note and the Warrants referred to therein.
The Company and the Purchaser hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
that are defined in the Securities Purchase Agreement shall have the meanings
given such terms in the Securities Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, par value
$0.01 per share.
"Effectiveness Date" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than one
hundred twenty (120) days following the date hereof and (ii) with respect to
each additional Registration Statement required to be filed hereunder (if any),
a date no later than thirty (30) days following the applicable Filing Date.
"Effectiveness Period" has the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"Filing Date" means, with respect to (i) the Registration Statement
required to be filed hereunder in respect of the shares of Common Stock issuable
upon conversion of the Note, a date no later than sixty (60) days following the
date hereof, (ii) the shares of Common Stock issuable upon exercise of any
Warrant, the date which is sixty (60) days after the date of the issuance of
such Warrant, and (iii) the shares of Common Stock issuable to the Holder as a
result of adjustments to the Fixed Conversion Price or Exercise Price, as the
case may be, made pursuant to the Note or the Warrant or otherwise, forty five
(45) days after the occurrence such event or the date of the adjustment of the
Fixed Conversion Price or Exercise Price, as the case may be.
"Holder" or "Holders" means the Purchaser or any of its affiliates or
transferees to the extent any of them hold Registrable Securities, other than
those purchasing Registrable Securities in a market transaction.
Registration Rights Agreement
"Indemnified Party" has the meaning set forth in Section 5(c).
"Indemnifying Party" has the meaning set forth in Section 5(c).
"Note" has the meaning set forth in the Securities Purchase Agreement.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means the shares of Common Stock issued upon
the conversion of the Note and issuable upon exercise of the Warrants.
"Registration Statement" means each registration statement required to
be filed hereunder, including the Prospectus therein, amendments and supplements
to such registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Securities Purchase Agreement" has the meaning given to such term in
the Preamble hereto.
"Trading Market" means any of the NASD Over The Counter Bulletin
Board, NASDAQ Capital Market, the NASDAQ National Markets System, the American
Stock Exchange or the New York Stock Exchange.
"Warrants" means the Common Stock purchase warrants issued in
connection with the Securities Purchase Agreement, whether on the date hereof or
thereafter.
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2. REGISTRATION.
(a) On or prior to the Filing Date the Company shall prepare and
file with the Commission a Registration Statement covering the
Registrable Securities for a selling stockholder resale offering to be
made on a continuous basis pursuant to Rule 415. The Registration
Statement shall be on Form S-3 (except if the Company is not then
eligible to register for resale the Registrable Securities on Form
S-3, in which case such registration shall be on another appropriate
form in accordance herewith). The Company shall cause each
Registration Statement to become effective and remain effective as
provided herein. The Company shall use its reasonable commercial
efforts to cause each Registration Statement to be declared effective
under the Securities Act as promptly as possible after the filing
thereof, but in any event no later than the Effectiveness Date. The
Company shall use its reasonable commercial efforts to keep each
Registration Statement continuously effective under the Securities Act
until the date which is the earlier date of when (i) all Registrable
Securities have been sold or (ii) all Registrable Securities covered
by such Registration Statement may be sold immediately without
registration under the Securities Act and without volume restrictions
pursuant to Rule 144(k), as determined by the counsel to the Company
pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company's transfer agent and the affected Holders
(the "Effectiveness Period").
(b) If: (i) the Registration Statement is not filed on or prior
to the Filing Date; (ii) the Registration Statement is not declared
effective by the Commission by the Effectiveness Date; (iii) after the
Registration Statement is filed with and declared effective by the
Commission, the Registration Statement ceases to be effective (by
suspension or otherwise) as to all Registrable Securities to which it
is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an
additional registration statement filed and declared effective) for a
period of time which shall exceed 30 days in the aggregate per year or
more than 20 consecutive calendar days (defined as a period of 365
days commencing on the date the Registration Statement is declared
effective); or (iv) the Common Stock is not listed or quoted, or is
suspended from trading on any Trading Market for a period of three (3)
consecutive Trading Days (provided the Company shall not have been
able to cure such trading suspension within 30 days of the notice
thereof or list the Common Stock on another Trading Market); (any such
failure or breach being referred to as an "Event," and for purposes of
clause (i) or (ii) the date on which such Event occurs, or for
purposes of clause (iii) the date which such 30 day or 20 consecutive
day period (as the case may be) is exceeded, or for purposes of clause
(iv) the date on which such three (3) Trading Day period is exceeded,
being referred to as "Event Date"), then until the applicable Event is
cured, the Company shall pay to each Holder an amount in cash, as
liquidated damages and not as a penalty, equal to 2.0% for each thirty
(30) day period (prorated for partial periods) on a daily basis of the
principal amount of the Note on the date hereof. While such Event
continues, such liquidated damages shall be paid not less often than
each thirty (30) days. Any unpaid liquidated damages as of the date
when an Event has been cured by the Company shall be paid within three
(3) days
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following the date on which such Event has been cured by the Company.
Notwithstanding anything to the contrary set forth herein, the maximum
aggregate amount of liquidated damages that may be charged to the
Company pursuant to this Section 2(b) shall not exceed in the
aggregate the amount equal to 12% of the initial Principal Amount of
the Note.
(c) Within three business days of the Effectiveness Date, the
Company shall cause its counsel to issue a blanket opinion in the form
attached hereto as Exhibit A, to the transfer agent stating that the
shares are subject to an effective registration statement and can be
reissued free of restrictive legend upon notice of a sale by the
Purchaser and confirmation by the Purchaser that it has complied with
the prospectus delivery requirements, provided that the Company has
not advised the transfer agent orally or in writing that the opinion
has been withdrawn. Copies of the blanket opinion required by this
Section 2(c) shall be delivered to the Purchaser within the time frame
set forth above.
3. REGISTRATION PROCEDURES. If and whenever the Company is required by the
provisions hereof to effect the registration of any Registrable Securities under
the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities, respond as promptly as
possible to any comments received from the Commission, and use its
best efforts to cause the Registration Statement to become and remain
effective for the Effectiveness Period with respect thereto, and
promptly provide to the Purchaser copies of all filings and Commission
letters of comment relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement and to
keep such Registration Statement effective until the expiration of the
Effectiveness Period applicable to such Registration Statement;
(c) furnish to the Purchaser such number of copies of the
Registration Statement and the Prospectus included therein (including
each preliminary Prospectus) as the Purchaser reasonably may request
to facilitate the public sale or disposition of the Registrable
Securities covered by the Registration Statement;
(d) use its commercially reasonable efforts to register or
qualify the Purchaser's Registrable Securities covered by such
Registration Statement under the securities or "blue sky" laws of such
jurisdictions within the United States as the Purchaser may reasonably
request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified
or to consent to general service of process in any such jurisdiction;
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(e) list the Registrable Securities covered by such Registration
Statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify the Purchaser at any time when a
Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the Prospectus contained in such
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
and
(g) make available for inspection by the Purchaser and any
attorney, accountant or other agent retained by the Purchaser, all
publicly available, non-confidential financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all publicly
available, non-confidential information reasonably requested by the
attorney, accountant or agent of the Purchaser.
4. REGISTRATION EXPENSES. All expenses relating to the Company's compliance
with Sections 2 and 3 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the NASD, transfer taxes, fees of
transfer agents and registrars, fees of, and disbursements incurred by, one
counsel for the Holders (only to the extent such counsel is required due to
Company's failure to meet any of its obligations hereunder), are called
"Registration Expenses". All selling commissions applicable to the sale of
Registrable Securities, including any fees and disbursements of any special
counsel to the Holders beyond those included in Registration Expenses, are
called "Selling Expenses." The Company shall only be responsible for all
Registration Expenses.
5. INDEMNIFICATION.
(a) In the event of a registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the Purchaser, and its officers, directors
and each other person, if any, who controls the Purchaser within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Purchaser, or such persons
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 any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement under which such Registrable Securities were
registered under the Securities Act pursuant to this Agreement, any
preliminary Prospectus or final Prospectus contained therein, or any
amendment or supplement thereof, 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 will reimburse the Purchaser, and each such
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5
person for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case if and 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 so made in conformity with information furnished by or on
behalf of the Purchaser or any such person in writing specifically for
use in any such document.
(b) In the event of a registration of the Registrable Securities
under the Securities Act pursuant to this Agreement, the Purchaser
will indemnify and hold harmless the Company, and its officers,
directors and each other person, if any, who controls the Company
within the meaning of the Securities Act, against all losses, claims,
damages or liabilities, joint or several, to which the Company or such
persons 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 any untrue statement
or alleged untrue statement of any material fact which was furnished
in writing by the Purchaser to the Company expressly for use in (and
such information is contained in) the Registration Statement under
which such Registrable Securities were registered under the Securities
Act pursuant to this Agreement, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement thereof,
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 will
reimburse the Company and each such person for any reasonable legal or
other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided,
however, that the Purchaser will be liable in any such case if and
only 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 so made in conformity with
information furnished in writing to the Company by or on behalf of the
Purchaser specifically for use in any such document. Notwithstanding
the provisions of this paragraph, the Purchaser shall not be required
to indemnify any person or entity in excess of the amount of the
aggregate net proceeds received by the Purchaser in respect of
Registrable Securities in connection with any such registration under
the Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party shall, if a claim
for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an "Indemnifying
Party"), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from
any liability which it may have to such Indemnified Party other than
under this Section 5(c) and shall only relieve it from any liability
which it may have to such Indemnified Party under this Section 5(c) if
and to the extent the Indemnifying Party is prejudiced by such
omission. In case any such action shall be brought against any
Indemnified Party and it shall notify the Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled to
participate in and, to the extent it shall wish,
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to assume and undertake the defense thereof with counsel satisfactory
to such Indemnified Party, and, after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume and
undertake the defense thereof, the Indemnifying Party shall not be
liable to such Indemnified Party under this Section 5(c) for any legal
expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof; if the Indemnified Party retains its own
counsel, then the Indemnified Party shall pay all fees, costs and
expenses of such counsel, provided, however, that, if the defendants
in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party shall have reasonably
concluded that there may be reasonable defenses available to it which
are different from or additional to those available to the
Indemnifying Party or if the interests of the Indemnified Party
reasonably may be deemed to conflict with the interests of the
Indemnifying Party, the Indemnified Party shall have the right to
select one separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the
Indemnifying Party as incurred.
(d) In order to provide for just and equitable contribution in
the event of joint liability under the Securities Act in any case in
which either (i) the Purchaser, or any officer, director or
controlling person of the Purchaser, makes a claim for indemnification
pursuant to this Section 5 but it is judicially determined (by the
entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in
such case notwithstanding the fact that this Section 5 provides for
indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of the Purchaser or such
officer, director or controlling person of the Purchaser in
circumstances for which indemnification is provided under this Section
5; then, and in each such case, the Company and the Purchaser will
contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such
proportion so that the Purchaser is responsible only for the portion
represented by the percentage that the public offering price of its
securities offered by the Registration Statement bears to the public
offering price of all securities offered by such Registration
Statement, provided, however, that, in any such case, (A) the
Purchaser will not be required to contribute any amount in excess of
the public offering price of all such securities offered by it
pursuant to such Registration Statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
6. REPRESENTATIONS AND WARRANTIES.
(a) The Common Stock is registered pursuant to Section 12(b) or
12(g) of the Exchange Act and, except with respect to certain matters
which the Company has disclosed to the Purchaser on Schedule 4.21 to
the Securities Purchase Agreement, the Company has timely filed all
proxy statements, reports, schedules,
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forms, statements and other documents required to be filed by it under
the Exchange Act. The Company has filed (i) its Annual Report on Form
10-K for its fiscal year ended March 31, 2006 and (ii) its Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2006
(collectively, the "SEC Reports"). Each SEC Report was, at the time of
its filing, in substantial compliance with the requirements of its
respective form and none of the SEC Reports, nor the financial
statements (and the notes thereto) included in the SEC Reports, as of
their respective filing dates, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply
as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission
or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally
accepted accounting principles ("GAAP") applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto or (ii) in the case
of unaudited interim statements, to the extent they may not include
footnotes or may be condensed) and fairly present in all material
respects the financial condition, the results of operations and the
cash flows of the Company and its subsidiaries, on a consolidated
basis, as of, and for, the periods presented in each such SEC Report.
(b) The Common Stock is listed for trading on the NASDAQ Global
Market and satisfies all requirements for the continuation of such
listing, and the Company shall do all things necessary for the
continuation of such listing. The Company has not received any notice
that its Common Stock will be delisted from the NASDAQ Global Market
(except for prior notices which have been fully remedied) or that the
Common Stock does not meet all requirements for the continuation of
such listing.
(c) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offers to buy any
security under circumstances that would cause the offering of the
Securities pursuant to the Securities Purchase Agreement to be
integrated with prior offerings by the Company for purposes of the
Securities Act which would prevent the Company from selling the Common
Stock pursuant to Rule 506 under the Securities Act, or any applicable
exchange-related stockholder approval provisions, nor will the Company
or any of its affiliates or subsidiaries take any action or steps that
would cause the offering of the Securities to be integrated with other
offerings.
(d) The Warrants, the Note and the shares of Common Stock which
the Purchaser may acquire pursuant to the Warrants and the Note are
all restricted securities under the Securities Act as of the date of
this Agreement. The Company will not issue any stop transfer order or
other order impeding the sale and delivery of any of the Registrable
Securities at such time as such Registrable Securities are
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8
registered for public sale or an exemption from registration is
available, except as required by federal or state securities laws.
(e) The Company understands the nature of the Registrable
Securities issuable upon the conversion of the Note and the exercise
of the Warrant and recognizes that the issuance of such Registrable
Securities may have a potential dilutive effect. The Company
specifically acknowledges that its obligation to issue the Registrable
Securities is binding upon the Company and enforceable regardless of
the dilution such issuance may have on the ownership interests of
other shareholders of the Company.
(f) Except for agreements made in the ordinary course of
business, there is no agreement that has not been filed with the
Commission as an exhibit to a registration statement or to a form
required to be filed by the Company under the Exchange Act, the breach
of which could reasonably be expected to have a material and adverse
effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into and
perform any of its obligations under this Agreement in any material
respect.
(g) The Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock for the full conversion of
the Note and exercise of the Warrants.
(h) The Company shall provide written notice to each Holder of
(i) the occurrence of each Discontinuation Event (as defined below)
and (i) the declaration of effectiveness by the SEC of each
Registration Statement required to be filed hereunder within one (1)
business day of the date of each such occurrence and/or declaration,
as the case may be.
7. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company or by a
Holder, of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to being
entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement.
(b) NO PIGGYBACK ON REGISTRATIONS. Except as and to the extent
specified in Schedule 7(b) hereto and the SEC Reports, neither the
Company nor any of its security holders (other than the Holders in
such capacity pursuant hereto) may include securities of the Company
in any Registration Statement other than the Registrable Securities.
Except as and to the extent specified in Schedule 7(b) hereto and the
SEC Reports, the Company has not previously entered into any agreement
granting any registration rights with respect to any of its securities
to any person or entity that have not been fully satisfied.
(c) COMPLIANCE. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act
as applicable to it in
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9
connection with sales of Registrable Securities pursuant to the
Registration Statement.
(d) DISCONTINUED DISPOSITION. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of a Discontinuation Event
(as defined below), such Holder will forthwith discontinue disposition
of such Registrable Securities under the applicable Registration
Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until
it is advised in writing (the "Advice") by the Company that the use of
the applicable Prospectus may be resumed, and, in either case, has
received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such
Prospectus or Registration Statement. The Company may provide
appropriate stop orders to enforce the provisions of this paragraph.
For purposes of this Agreement, a "Discontinuation Event" shall mean
(i) when the Commission notifies the Company whether there will be a
"review" of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement (the Company shall
provide true and complete copies thereof and all written responses
thereto to each of the Holders); (ii) any request by the Commission or
any other Federal or state governmental authority for amendments or
supplements to such Registration Statement or Prospectus or for
additional information; (iii) the issuance by the Commission of any
stop order suspending the effectiveness of such Registration Statement
covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (iv) the receipt by the Company of
any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and/or (v) the occurrence of any event or
passage of time that makes the financial statements included in such
Registration Statement ineligible for inclusion therein or any
statement made in such Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any
revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or
Prospectus, as the case may be, it will not contain any 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 under which they were made, not
misleading.
(e) PIGGY-BACK REGISTRATIONS. If after the date hereof there is
not an effective Registration Statement covering all of the
Registrable Securities required to be covered hereunder and the
Company shall determine to prepare and file with the Commission a
registration statement relating to an offering for its own account or
the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection
with stock option or other employee benefit plans, then the Company
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10
shall send to each Holder written notice of such determination and, if
within fifteen (15) days after receipt of such notice, any such Holder
shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities
such Holder requests to be registered to the extent the Company may do
so without violating registration rights of others which exist as of
the date of this Agreement, subject to customary underwriter cutbacks
applicable to all holders of registration rights and subject to
obtaining any required consent of any selling stockholder(s) to such
inclusion under such registration statement.
(f) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and the Holders of the then
outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to
a matter that relates exclusively to the rights of certain Holders and
that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(g) NOTICES. Any notice or request hereunder may be given to the
Company or the Purchaser at the respective addresses set forth below
or as may hereafter be specified in a notice designated as a change of
address under this Section 7(g). Any notice or request hereunder shall
be given by registered or certified mail, return receipt requested,
hand delivery, overnight mail, Federal Express or other national
overnight next day carrier (collectively, "Courier") or telecopy
(confirmed by mail). Notices and requests shall be, in the case of
those by hand delivery, deemed to have been given when delivered to
any party to whom it is addressed, in the case of those by mail or
overnight mail, deemed to have been given three (3) business days
after the date when deposited in the mail or with the overnight mail
carrier, in the case of a Courier, the next business day following
timely delivery of the package with the Courier, and, in the case of a
telecopy, when confirmed. The address for such notices and
communications shall be as follows:
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If to the Company: Clinical Data, Inc.
Xxx Xxxxxxx Xxxxxx, 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, EVP
and Chief Legal Officer
Facsimile: (000) 000-0000
with a copy to:
XxXxxxxxx Will & Xxxxx LLP
Attention: Xxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
If to a Purchaser: To the address set forth under such
Purchaser name on the signature
pages hereto.
If to any other Person who is
then the registered Holder: To the address of such Holder as it
appears in the stock transfer books
of the Company
or such other address as may be designated in writing hereafter in
accordance with this Section 7(g) by such Person.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Holder. The
Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the persons and
entities as permitted under the Note and the Securities Purchase
Agreement.
(i) EXECUTION AND COUNTERPARTS. This Agreement may be executed in
any number of 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. In the event that any signature
is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as
if such facsimile signature were the original thereof.
(j) GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. The Company hereby consents and agrees
that the state or federal courts located in the County of New York,
State of New York shall have exclusion jurisdiction to hear
Registration Rights Agreement
12
and determine any Proceeding between the Company, on the one hand, and
the Purchaser, on the other hand, pertaining to this Agreement or to
any matter arising out of or related to this Agreement; provided, that
the Purchaser and the Company acknowledge that any appeals from those
courts may have to be heard by a court located outside of the County
of New York, State of New York, and further provided, that nothing in
this Agreement shall be deemed or operate to preclude the Purchaser
from bringing a Proceeding in any other jurisdiction to collect the
obligations, to realize on the Collateral or any other security for
the obligations, or to enforce a judgment or other court order in
favor of the Purchaser. The Company expressly submits and consents in
advance to such jurisdiction in any Proceeding commenced in any such
court, and the Company hereby waives any objection which it may have
based upon lack of personal jurisdiction, improper venue or forum non
conveniens. The Company hereby waives personal service of the summons,
complaint and other process issued in any such Proceeding and agrees
that service of such summons, complaint and other process may be made
by registered or certified mail addressed to the Company at the
address set forth in Section 7(g) and that service so made shall be
deemed completed upon the earlier of the Company's actual receipt
thereof or three (3) days after deposit in the U.S. mails, proper
postage prepaid. The parties hereto desire that their disputes be
resolved by a judge applying such applicable laws. Therefore, to
achieve the best combination of the benefits of the judicial system
and of arbitration, the parties hereto waive all rights to trial by
jury in any Proceeding brought to resolve any dispute, whether arising
in contract, tort, or otherwise between the Purchaser and/or the
Company arising out of, connected with, related or incidental to the
relationship established between then in connection with this
Agreement. If either party hereto shall commence a Proceeding to
enforce any provisions of this Agreement, the Securities Purchase
Agreement or any other Related Agreement, then the prevailing party in
such Proceeding shall be reimbursed by the other party for its
reasonable attorneys' fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such Proceeding.
(k) CUMULATIVE REMEDIES. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(l) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their reasonable efforts
to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
Registration Rights Agreement
13
(m) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
Registration Rights Agreement
14
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
CLINICAL DATA, INC. LAURUS MASTER FUND, LTD.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx Grin
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx Grin
Title: Executive Vice President and Title: Director
Chief Legal Officer
Address for Notices:
c/o Laurus Capital Management, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Grin
Facsimile: 000-000-0000
Registration Rights Agreement
15
EXHIBIT A
[__________ __, 200__]
[Continental Stock Transfer
& Trust Company
Two Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx]
Re: Clinical Data, Inc. Registration Statement on Form S-3
Ladies and Gentlemen:
As counsel to Clinical Date, Inc., a Delaware corporation (the "Company"),
we have been requested to render our opinion to you in connection with the
resale by the individuals or entitles listed on Schedule A attached hereto (the
"Selling Stockholders"), of an aggregate of __________ shares (the "Shares") of
the Company's Common Stock.
A Registration Statement on Form S-3 under the Securities Act of 1933, as
amended (the "Act"), with respect to the resale of the Shares was declared
effective by the Securities and Exchange Commission on [date]. Enclosed is the
Prospectus dated [date]. We understand that the Shares are to be offered and
sold in the manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at any
time while the registration statement remains effective, it is our opinion that
the Shares have been registered for resale under the Act and new certificates
evidencing the Shares upon their transfer or re-registration by the Selling
Stockholders may be issued without restrictive legend. We will advise you if the
registration statement is not available or effective at any point in the future.
Very truly yours,
----------------------------------------
[Company counsel]
Registration Rights Agreement
SCHEDULE A TO EXHIBIT A
Shares
Selling Stockholder Being Offered
------------------- -------------
Registration Rights Agreement
SCHEDULE 7(B)
Registration Rights Agreement
