EXHIBIT 4.2
CELL THERAPEUTICS, INC.
FORM OF REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of the 15th
day of February, 2000, by and between Cell Therapeutics, Inc., a Washington
corporation (the "Company") and the investor set forth on the signature page
hereto (the "Investor").
RECITALS:
The Company and the Investor have entered into a Securities Purchase
Agreement (the "Purchase Agreement") of even date herewith pursuant to which the
Company will issue and sell to the Investor shares of common stock, no par value
per share (the "Common Stock", of the company on the terms and conditions set
forth in the Purchase Agreement. A condition to the Investor's obligations
under the Purchase Agreement is that the Company and the Investor enter into
this Agreement in order to provide the Investor with certain rights to register
shares of the Company's Common Stock sold in the Offering. Capitalized terms
used herein, but not otherwise defined, shall have the meaning ascribed to such
term in the Purchase Agreement.
AGREEMENT
The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investor covenant and agree
as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means (i) the shares of
Common Stock purchased in the Offering, (ii) the shares of Common Stock issuable
or issued upon exercise of the Paramount Warrants, and (iii) any other shares of
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the shares listed in (i) or (ii); provided, however, that the foregoing
definition shall exclude in all cases any Registrable Securities sold by a
person in a transaction in which his or her rights under this Agreement are not
assigned. Notwithstanding the foregoing, Common Stock or other securities shall
only be treated as Registrable Securities if and so long as they have not been
(A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale;
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(c) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.9 of this Agreement;
(d) The term "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any successor form that permits significant
incorporation by reference of the Company's filings under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(e) The term "SEC" means the Securities and Exchange Commission.
1.2 FORM S-3 REGISTRATION. (a) Unless otherwise instructed in
writing by the Holder, the Company will use its best efforts to effect a
registration on Form S-3 (or, if not available Form S-2 or S-1, the form so
utilized being the "Relevant Registration Statement") as soon as possible, but
in any event prior to 30 days after any issuance of Common Stock and all related
qualifications and compliances as would permit or facilitate the sale and
distribution of such shares of Holder's Registrable Securities that Holder
requests; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance pursuant to this Section 1.2
(1) if the Company shall furnish to the Holder a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such registration statement to be effected at such time
because the filing thereof would require premature disclosure of a potential
transaction or transactions (a "Potential Transaction"), in which event the
Company shall have the right to defer the filing of such registration statement
for a period of not more than 60 days; provided, however, that the Company shall
not utilize this right more than once in any 270 day period; or (2) in any
particular jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in effecting such
registration, qualification or compliance.
(b) If (1) the Relevant Registration Statement is not filed on or
prior to the thirty (30) days specified above (subject to subclause(x)), or (2)
the Company fails to file with the Commission a request for acceleration in
accordance with Rule 12d1-2 promulgated under the Exchange Act within five (5)
days of the date that the Company is notified (orally or in writing, whichever
is earlier) by the Commission that a Relevant Registration Statement will not be
"reviewed," or not subject to further review or comment, or (3) a Relevant
Registration Statement is not declared effective by the Commission on or prior
to (subject to subclause x) ninety (90) days from the issuance of the Common
Stock (or one hundred twenty (120) days from filing in the event the Company
then has an S-4 Registration Statement on file), or (4) a Relevant Registration
Statement is filed with and declared effective by the Commission but thereafter
ceases to be effective as to all Registrable Securities at any time prior to the
expiration of twenty-four (24) months from the last issuance of securities
covered by such Relevant Registration Statement without being succeeded within
ten (10) days by a subsequent Relevant Registration Statement filed with and
declared effective by the Commission, or (5) trading in the Common Stock shall
be suspended from the NASDAQ or a Subsequent Market for more than three (3)
Business Days (which need not be consecutive days), or (6) an amendment to a
Relevant Registration Statement is not filed by the Company with the Commission
within twenty (20) days of the Commission's notifying the Company that such
amendment is required in order
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for the Relevant Registration Statement to be declared effective (any such
failure or breach being referred to as an "Event," and for purposes of clauses
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(1) and (3) the date on which such Event occurs, or for purposes of clause (2)
the date on which such five (5) day period is exceeded, or for purposes of
clauses (4) and (6) the date which such 10 day-period is exceeded, or for
purposes of clause (5) the date on which such three (3) Business Day-period is
exceeded, being referred to as an "Event Date"), then, on an Event Date and each
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monthly anniversary thereof until the earlier to occur of (i) the third (3rd)
monthly anniversary of the Event Date and (ii) such time as the applicable Event
is cured, the Company shall pay to the Holder one percent (1%) of the aggregate
Purchase Price paid by such Holder in the Offering, in cash, as liquidated
damages and not as a penalty. Commencing on the (3rd) monthly anniversary of the
Event Date and on each monthly anniversary thereof until the applicable Event is
cured, the Company shall pay to the Holder 3% of the aggregate Purchase Price
paid by such Holder in the Offering, in cash, as liquidated damages and not as a
penalty. If the Company fails to pay the liquidated damages hereunder in full
pursuant to this Section on the date such amount is due in accordance with this
Section, the Company will pay interest thereon at a rate of 18% per annum (or
the lesser amount permitted by applicable law), accruing daily from such date
until the liquidated damages hereunder, plus all such interest thereon, are paid
in full.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under Section 1.2
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible, use its best commercial efforts to:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and cause such registration statement to
become effective, and, upon the request of the Holder of the Registrable
Securities registered thereunder, keep such registration statement effective for
twenty-four (24) months.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration.
(c) Furnish to the Holder such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the Holder may reasonably request in
order to facilitate the disposition of Registrable Securities owned by the
Holder.
(d) Register and qualify the Registrable Securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holder, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) Notify the Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a
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material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(f) Cause all such Registrable Securities registered pursuant the
Section 1.2 to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(g) Provide Holder's counsel copies of such registration
statement, amendments and supplements prior to filing with the SEC, and promptly
provide such counsel with any comment letters or similar notices received by the
Company from the SEC with respect thereto.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Furnish, at the request of the Holder, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the Holder and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the Holder.
1.4 RESTRICTIONS ON AND PROCEDURE FOR SALES PURSUANT TO A REGISTRATION
STATEMENT.
Delay of Sale. The Company may refuse to permit the Holder to resell
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any Registrable Securities for a specified period of time; provided, however,
that (a) in order to exercise this right, the Company must deliver a certificate
in writing to the Holder to the effect that the registration statement in its
then current form omits discussion of a Potential Transaction or contains an
untrue statement of material fact or omits to state a material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, and (b) in no event shall such delay
exceed 60 days in the event of a Potential Transaction, or 20 days in other
cases (none of which other cases shall have a duration of more than five
consecutive business days) in any twelve-month period, and (c) in no event shall
this right of delay be exercised within five business days of the effective date
of a Relevant Registration Statement. During any suspension as contemplated by
this Section 1.4 (a)(iii), the Company will not allow any of its officers or
directors to buy or sell shares of the Company's securities.
1.5 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of the Holder that the Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's
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Registrable Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 of this Agreement if, as a result
of the application of the preceding sentence, the anticipated aggregate value of
the Registrable Securities to be included in the registration does not equal or
exceed the anticipated aggregate value required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(b).
1.6 EXPENSES OF REGISTRATION. All expenses incurred in connection
with a registration requested pursuant to Section 1.2, including (without
limitation) all registration, filing, qualification, printers' and accounting
fees and the reasonable fees and disbursements of one counsel for the selling
Holder selected by Holder with the approval of the Company, which approval shall
not be unreasonably withheld, and counsel for the Company shall be borne by the
Company.
1.7 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless Holder and each person, if any, who controls Holder or
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law; and the
Company will pay to each such Holder or controlling person, as incurred, any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable to any Holder or controlling person for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder or controlling person.
(b) To the extent permitted by law, the Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act and any controlling person of
any Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case
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to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by Holder expressly
for use in connection with such registration; and Holder will pay, as incurred,
any legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 1.7(b), in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 1.7(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; provided, that in no
event shall any indemnity under this subsection 1.7(b) exceed the net proceeds
from the offering received by Holder, except in the case of willful fraud by
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.7 but the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.7.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that in no event shall any contribution by Holder
under this subsection 1.7(d) exceed the net proceeds from the offering received
by Holder, except in the case of willful fraud by Holder. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
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(e) The obligations of the Company and Holder under this Section
1.7 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.8 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holder the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to
use its best commercial efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times so long as the Company
remains subject to the periodic reporting requirements under Sections 13 or
15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to Holder, so long as Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the Securities
Act and the Exchange Act, or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time when it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
1.9 [RESERVED]
1.10 "MARKET STAND-OFF" AGREEMENT. Holder hereby agrees that, during
the period of duration (up to, but not exceeding, 90 days) specified by the
Company and an underwriter of Common Stock or other securities of the Company,
following the effective date of an underwritten registration statement of the
Company filed under the Securities Act, it shall not, to the extent requested by
the Company and such underwriter if, and only if, at the time of such request
Holder is subject to reporting under Section 16(a) of the Exchange Act with
respect to securities of the Company beneficially owned by it, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation,
any short sale), grant any option to purchase or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any securities of the
Company held by it at any time during such period except Common Stock included
in such registration.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of the Holder
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period, and the Holder agrees that, if so
requested, the Holder will execute an agreement in the form provided by the
underwriter containing terms which are essentially consistent with the
provisions of this Section 1.10.
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1.11 TERMINATION OF REGISTRATION RIGHTS. With respect to shares of
Registrable Securities issued to the Investor at the Closing, the Holder shall
not be entitled to exercise any right provided for in this Section 1 after such
time as Rule 144(k) under the Securities Act is available for the sale of all of
such Holder's shares that were issued at the Initial Closing or the applicable
Subsequent Closing. For purposes of clarity, the registration rights of a Holder
provided for in this Section 1 shall terminate in stages, which stages shall
correspond to the initial issuance date of such Registrable Securities.
2. MISCELLANEOUS.
2.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
(including transferees of any of the Common Stock). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
2.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
or waived only with the written consent of the Company and the holders of a
majority of the Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
2.3 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number as set forth on
the signature page hereto or as subsequently modified by written notice, and if
to CTI, with a copy to Wilson, Sonsini, Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx,
Xxxx Xxxx, XX 00000, Tel: (000) 000-0000, Fax: [_______], Attn: Xxxxxxx Xxxxxxx.
2.4 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
2.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of New York, without giving effect to principles of
conflicts of laws.
2.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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2.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
[Signature Page Follows]
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The parties have executed this Registration Rights Agreement as of the date
first above written.
CELL THERAPEUTICS, INC. INVESTOR:________________________
By:________________________ By:________________________________
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer Name:______________________________
Title:_____________________________
Address:___________________________
___________________________
___________________________
Tel:_______________________________
Fax:_______________________________
Soc. Sec./
or Tax I.D.________________________
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