Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of July 10, 2003, by and among Cytogen Corporation, a Delaware
corporation (the "Company"), and the investors signatory hereto (each a
"Purchaser" and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement, dated
as of the date hereof among the Company and the Purchasers (the "Purchase
Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
"Effectiveness Date" means, with respect to the initial
Registration Statement required to be filed hereunder, the 90th
calendar day following the Closing Date (or the 120th calendar day
following the Closing Date in the event of a review by the Commission
or in the event the Commission delays the effectiveness of the
Registration Statement due to a review of the Company's outstanding
confidentiality treatment applications) and with respect to any
additional Registration Statements required pursuant to Section 2(c),
the 90th calendar day following the date on which the Company first
knows, or reasonably should have known, that such additional
Registration Statement is required hereunder (or the 120th calendar
day following the date on which the Company first knows, or reasonably
should have known, that such additional Registration Statement is
required hereunder in the event of a review by the Commission or in
the event the Commission delays the effectiveness of such Registration
Statement due to a review of the Company's outstanding confidentiality
treatment applications).
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Filing Date" means, with respect to the initial Registration
Statement required to be filed hereunder, the 30th calendar day
following the Closing Date and, with respect to any additional
Registration Statements which may be required pursuant to Section
2(c), the 30th calendar day following the date on which the Company
first knows, or reasonably should have known that such additional
Registration Statement is required hereunder.
"Holder" or "Holders" means the holder or holders, as the case
may be, from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in Section
5(c).
"Indemnifying Party" shall have the meaning set forth in Section
5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"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 a 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 a 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, together with any
securities issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event with respect to the
foregoing.
"Registration Statement" means a Registration Statements required
to be filed hereunder, including (in each case) the Prospectus,
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 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.
"Rule 424" means Rule 424 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.
"Shares" solely for the purpose of this Agreement means the
Shares (as defined in the Purchase Agreement) together with the
Warrant Shares issuable upon exercise of the Warrants.
2. Registration.
(a) On or prior to each Filing Date, the Company shall use
commercially reasonable efforts to prepare and file with the
Commission a Registration Statement covering the resale of 100% of the
Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415. A Registration Statement required
hereunder 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). Each Registration Statement required
2
hereunder shall contain (except if otherwise directed by the Holders)
the "Plan of Distribution" attached hereto as Annex A. The Company
shall cause such Registration Statement to become effective and remain
effective as provided herein. The Company shall use its commercially
reasonable 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 not later than the Effectiveness
Date, and shall use its commercially reasonable efforts to keep such
Registration Statement continuously effective under the Securities Act
until the date which is two years after the date that such
Registration Statement is declared effective by the Commission or such
earlier date when all Registrable Securities covered by such
Registration Statement have been sold or may be sold 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 a Registration Statement filed or required to be filed
hereunder is not declared effective by the Commission on or before the
Effectiveness Date (any such failure or breach to be referred to as an
"Event") then in addition to any other rights the Holders may have
hereunder or under applicable law: (x) on the seventh day after the
date of such Event (the "Event Date"), the Company shall pay to each
Holder an amount in cash or shares of the Company's Common Stock (at
the Company's option), as liquidated damages and not as a penalty,
equal to 1.5% of the aggregate purchase price paid by such Holder
pursuant to the Purchase Agreement for any Registrable Securities then
held by such Holder; and (y) on seventh day of each monthly
anniversary of each such Event Date (if the applicable Event shall not
have been cured by such date) until the applicable Event is cured, the
Company shall pay to each Holder an amount in cash or shares of the
Company's Common Stock (at the Company's option), as liquidated
damages and not as a penalty, equal to 1.5% of the aggregate purchase
price paid by such Holder pursuant to the Purchase Agreement for any
Registrable Securities then held by such Holder.
(c) If during the Effectiveness Period, the number of Registrable
Securities at any time exceeds 100% of the number of shares of Common
Stock then registered in a Registration Statement, then the Company
shall file as soon as reasonably practicable but in any case prior to
the applicable Filing Date, an additional Registration Statement
covering the resale of by the Holders of not less than 100% of the
number of such Registrable Securities.
3. Registration Procedures
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Not less than three Trading Days prior to the filing of a
Registration Statement or any related Prospectus or any amendment or
supplement thereto, the Company shall, (i) furnish to the Holders
copies of all such documents proposed to be filed (including documents
incorporated or deemed incorporated by reference to the extent
requested by such Person) which documents will be subject to the
review of such
3
Holders, and (ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such inquiries
as shall be necessary, in the reasonable opinion of respective counsel
to conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file a Registration Statement or
any such Prospectus or any amendments or supplements thereto to which
the Holders of a majority of the Registrable Securities shall
reasonably object.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to a Registration Statement and
the Prospectus used in connection therewith as may be necessary to
keep a Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period and
prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act
all of the Registrable Securities; (ii) cause the related Prospectus
to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible, and in any event
within fifteen days, to any comments received from the Commission with
respect to a Registration Statement or any amendment thereto and, as
promptly as reasonably possible, upon request, provide the Holders
true and complete copies of all correspondence from and to the
Commission relating to such Registration Statement; and (iv) comply in
all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable
Securities covered by a Registration Statement during the applicable
period in accordance with the intended methods of disposition by the
Holders thereof set forth in a Registration Statement as so amended or
in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold as
promptly as reasonably possible (and, in the case of (i)(A) below, not
less than three Trading Days prior to such filing) and (if requested
by any such Person) confirm such notice in writing promptly following
the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to a Registration Statement is proposed to be
filed; (B) when the Commission notifies the Company whether there will
be a "review" of a Registration Statement and whenever the Commission
comments in writing on such Registration Statement (the Company shall
upon request provide true and complete copies thereof and all written
responses thereto to each of the Holders); and (C) with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective; (ii) of any request by the Commission or any
other Federal or state governmental authority during the period of
effectiveness of a Registration Statement for amendments or
supplements to a Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the Commission or any
other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement covering any
or all of the Registrable Securities or the initiation of any
Proceedings for that purpose; (iv) 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 Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and (v) of the occurrence of any event or
passage of time that makes the financial statements included in a
Registration Statement ineligible
4
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 a Registration Statement or
the 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.
(d) Use its commercially reasonable efforts to avoid the issuance
of, or, if issued, obtain the withdrawal of (i) any order suspending
the effectiveness of a Registration Statement, or (ii) any suspension
of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(e) Furnish to each Holder, without charge, at least one
conformed copy of each Registration Statement and each amendment
thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference to the
extent reasonably requested by such Person, and all exhibits to the
extent reasonably requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of
such documents with the Commission.
(f) Promptly deliver to each Holder, without charge, as many
copies of the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Persons
may reasonably request. The Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(g) Prior to any public offering of Registrable Securities, use
its commercially reasonable efforts to register or qualify or
cooperate with the selling Holders in connection with the registration
or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder reasonably requests in writing, to keep
each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities
covered by a Registration Statement; provided, that the Company shall
not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, subject the Company to
any material tax in any such jurisdiction where it is not then so
subject or file a general consent to service of process in any such
jurisdiction.
(h) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to a Registration
Statement, which certificates shall be free, to the extent
5
permitted by the Purchase Agreement, of all restrictive legends, and
to enable such Registrable Securities to be in such denominations and
registered in such names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or
amendment, including a post-effective amendment, to a Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered,
neither such Registration Statement nor such Prospectus will 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, in light of the circumstances under which they were made, not
misleading.
(j) Comply with all applicable rules and regulations of the
Commission.
(k) The Company may require each selling Holder to furnish to the
Company a certified statement as to the number of shares of Common
Stock beneficially owned by such Holder and, if requested by the
Commission, the controlling person thereof.
4. Registration Expenses. All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be borne by the
Company whether or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (A) with respect to
filings required to be made with the Trading Market on which the Common
Stock is then listed for trading, and (B) in compliance with applicable
state securities or Blue Sky laws), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable
Securities and of printing prospectuses if the printing of prospectuses is
reasonably requested by the holders of a majority of the Registrable
Securities included in a Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for
the Company, (v) Securities Act liability insurance, if the Company so
desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement. In addition, the Company shall
be responsible for all of its internal expenses incurred in connection with
the consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any
annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as
required hereunder.
5. Indemnification
(a) Indemnification by the Company. The Company shall, notwithstanding
any termination of this Agreement, indemnify and hold harmless each Holder,
the officers, directors, agents and employees of each of them, each Person
who controls any
6
such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable attorneys'
fees) and expenses (collectively, "Losses"), as incurred, arising out of or
relating to any untrue or alleged untrue statement of a material fact
contained in a Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus or form of
prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, except to the extent, but only to the
extent, that (1) such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the Company by
such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in a Registration
Statement, such Prospectus or such form of Prospectus or in any amendment
or supplement thereto (it being understood that the Holder has approved
Annex A hereto for this purpose) or (2) in the case of an occurrence of an
event of the type specified in Section 3(c)(ii)-(v), the use by such Holder
of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to
the receipt by such Holder of the Advice contemplated in Section 6(c). The
Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in connection
with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling
Persons, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, arising out of or based solely upon: (x)
such Holder's failure to comply with the prospectus delivery requirements
of the Securities Act or (y) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, any Prospectus, or
any form of prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or
alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading (i) to the extent,
but only to the extent, that such untrue statement or omission is contained
in any information so furnished in writing by such Holder to the Company
specifically for inclusion in such Registration Statement or such
Prospectus or (ii) to the extent that (1) such untrue statements or
omissions are based upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities and was reviewed
and expressly approved in writing by such Holder expressly for use in a
Registration Statement (it being understood that the Holder has approved
Annex A hereto for this purpose), such Prospectus or such form of
Prospectus or in any
7
amendment or supplement thereto or (2) in the case of an occurrence of an
event of the type specified in Section 3(c)(ii)-(v), the use by such Holder
of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to
the receipt by such Holder of the Advice contemplated in Section 6(c). In
no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the gross proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "Indemnifying Party") in writing,
and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except
(and only) to the extent that it shall be finally determined by a court of
competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed
in writing to pay such fees and expenses; (2) the Indemnifying Party shall
have failed promptly to assume the defense of such Proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (3) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that a
conflict of interest is likely to exist if the same counsel were to
represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the
defense thereof and the reasonable fees and expenses of one separate
counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party,
unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter
of such Proceeding.
All reasonable fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse
8
the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is not entitled
to indemnification hereunder, determined based upon the relative faults of
the parties.
(d) Contribution. If a claim for indemnification under Section 5(a) or
5(b) is unavailable to an Indemnified Party (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions
that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or payable by a
party as a result of any Losses shall be deemed to include, subject to the
limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) 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 immediately
preceding paragraph. Notwithstanding the provisions of this Section 5(d),
no Holder shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the proceeds actually received by such Holder
from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, except in the case of fraud by such Holder.
The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may have to
the Indemnified Parties.
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a Holder,
of any of their 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. The Company and each Holder agree that monetary damages would
not provide adequate compensation for any losses incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in
9
the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) Compliance. Each Holder covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to a Registration Statement.
(c) 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 any event of the kind described in Section 3(c), such
Holder will forthwith discontinue disposition of such Registrable
Securities under a 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.
(d) 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 Holders holding at least 50% of the then outstanding
Registrable Securities.
(e) Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at
the facsimile number provided for below prior to 6:30 p.m. (New York City
time) on a Trading Day, (ii) the Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at
the facsimile number provided for below later than 6:30 p.m. (New York City
time) on any date and earlier than 11:59 p.m. (New York City time) on such
date, (iii) the Trading Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be delivered and
addressed as set forth in the Purchase Agreement.
(f) 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. Except to its
successors, 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 as
permitted under the Purchase Agreement.
(g) 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
10
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.
(h) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the internal laws
of the State of Delaware, without regard to the principles of conflicts of
law thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated
by this Agreement (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall
be commenced exclusively in the state and federal courts sitting in the
State of Delaware. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the State
of Delaware for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of the any of this Agreement),
and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereto 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 via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in effect for 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. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
If either party shall commence an action or proceeding to enforce any
provisions of this Agreement, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorneys fees
and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
(i) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(j) 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 commercially 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
11
remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(l) Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser hereunder is several and not joint with the
obligations of any other Purchaser hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Purchaser
pursuant hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Purchasers are in any way acting in
concert with respect to such obligations or the transactions contemplated
by this Agreement. Each Purchaser shall be entitled to protect and enforce
its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any proceeding for such purpose.
* * * * *
12
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
CYTOGEN CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
[PURCHASERS' SIGNATURE PAGES TO FOLLOW]
[PURCHASER'S SIGNATURE PAGE TO RRA]
XXXXXX X. XXXXXXXX, XXX
------------------------------------
Print Entity Name
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
Print Title: Individual
[PURCHASER'S SIGNATURE PAGE TO RRA]
Merlin BioMed Longterm Appreciation Fund, L.P.
----------------------------------------------
Print Entity Name
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: CFO
[PURCHASER'S SIGNATURE PAGE TO RRA]
XXXXXX X. XXXXXXXX
------------------------------------
Print Entity Name
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
Print Title: Individual
[PURCHASER'S SIGNATURE PAGE TO RRA]
Merlin BioMed International Ltd.
------------------------------------
Print Entity Name
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: CFO
[PURCHASER'S SIGNATURE PAGE TO RRA]
Merlin BioMed II L.P.
------------------------------------
Print Entity Name
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: CFO
[PURCHASER'S SIGNATURE PAGE TO RRA]
Merlin BioMed Offshore Master Fund
------------------------------------
Print Entity Name
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: CFO
[PURCHASER'S SIGNATURE PAGE TO RRA]
Merlin BioMed, L.P.
------------------------------------
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: CFO
[PURCHASER'S SIGNATURE PAGE TO RRA]
KNIGHTSBRIDGE POST VENTURE IV L.P.
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE INTEGRATED HOLDINGS, V, LP
By:/s/ Xxxx X. Xxxxx
--------------------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE NETHERLANDS II, L.P.
By:/s/ Xxxx X. Xxxxx
--------------------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE INTEGRATED HOLDINGS IV POST VENTURE, LP
By:/s/ Xxxx X. Xxxxx
--------------------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE POST VENTURE III, LP
By:/s/ Xxxx X. Xxxxx
--------------------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE NETHERLAND I LLP
By:/s/ Xxxx X. Xxxxx
--------------------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE NETHERLANDS III - LP
By:/s/ Xxxx X. Xxxxx
---------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE INTEGRATED HOLDINGS II LIMITED
By:/s/ Xxxx X. Xxxxx
---------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE VENTURE CAPITAL IV L.P.
By:/s/ Xxxx X. Xxxxx
---------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
KNIGHTSBRIDGE VENTURE CAPITAL III LP
By:/s/ Xxxx X. Xxxxx
---------------------------------
Print Name: Xxxx X. Xxxxx
Print Title: Partner; OrbiMed Advisors LLC
HFR SHC AGGRESSIVE FUND
------------------------------------
By:/s/ Xxxx Xxxxx
---------------------------------
Print Name: Xxxx Xxxxx for & on
behalf of HFR Asset
Management, LLC as
attorney in fact
Print Title:
[PURCHASER'S SIGNATURE PAGE TO RRA]
EXPRESSWAY PARTNERS, LTD.
------------------------------------
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: Managing Member
[PURCHASER'S SIGNATURE PAGE TO RRA]
THRUWAY PARTNERS, LP
------------------------------------
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: Managing Member
[PURCHASER'S SIGNATURE PAGE TO RRA]
HIGHWAY PARTNERS, LP
------------------------------------
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: Managing Member
[PURCHASER'S SIGNATURE PAGE TO RRA]
DOMAIN PUBLIC EQUITY PARTNERS, L.P.
BY DOMAIN PUBLIC EQUITY ASSOCIATES, L.L.C.
--------------------------------------------
By:/s/ Xxxxxx Xxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxx
Print Title: Managing Member
[PURCHASER'S SIGNATURE PAGE TO RRA]
DELTA OPPORTUNITY FUND (Institutional), LLC
--------------------------------------------
Xxxx & Xxxxxxxx Management, LLC,
Managing Member
By:/s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxxxxxx X. Xxxxxx
Print Title: Chief Financial Officer
[PURCHASER'S SIGNATURE PAGE TO RRA]
THE TROUT GROUP LLC
------------------------------------
By:/s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Print Name: Xxxxxxxx Xxxxxxxx
Print Title: President
[PURCHASER'S SIGNATURE PAGE TO RRA]
CLSP, L.P.
------------------------------------
By:/s/ Xxxxxxx Xxxxxx
---------------------------------
Print Name: Xxxxxxx Xxxxxx
Print Title: GP
[PURCHASER'S SIGNATURE PAGE TO RRA]
CLSP II, L.P.
------------------------------------
By:/s/ Xxxxxxx Xxxxxx
---------------------------------
Print Name: Xxxxxxx Xxxxxx
Print Title: GP
[PURCHASER'S SIGNATURE PAGE TO RRA]
CLSP SBS - I, L.P.
------------------------------------
By:/s/ Xxxxxxx Xxxxxx
---------------------------------
Print Name: Xxxxxxx Xxxxxx
Print Title: GP
[PURCHASER'S SIGNATURE PAGE TO RRA]
CLSP SBS - II, L.P.
------------------------------------
By:/s/ Xxxxxxx Xxxxxx
---------------------------------
Print Name: Xxxxxxx Xxxxxx
Print Title: GP
[PURCHASER'S SIGNATURE PAGE TO RRA]
CLSP OVERSEAS LTD.
------------------------------------
By:/s/ Xxxxxxx Xxxxxx
---------------------------------
Print Name: Xxxxxxx Xxxxxx
Print Title: Investment Manager
[PURCHASER'S SIGNATURE PAGE TO RRA]
MILLENCO L.P.
------------------------------------
By:/s/ Xxxxxx Xxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxx
Print Title: CFO
[PURCHASER'S SIGNATURE PAGE TO RRA]
VERTICAL VENTURES INVESTMENTS, LLC
------------------------------------
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Print Title: Manager
[PURCHASER'S SIGNATURE PAGE TO RRA]
DELTA OPPORTUNITY FUND, LTD.
------------------------------------
Xxxx & Altschul Advisors, LLC,
as Investment Advisor
By:/s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxxxxxx X. Xxxxxx
Print Title: Chief Financian Officer
Annex A
Plan of Distribution
--------------------
The Selling Stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- an exchange distribution in accordance with the rules of the
applicable exchange;
- privately negotiated transactions;
- settlement of short sales;
- broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
- a combination of any such methods of sale; and
- any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a security
interest in some or all of the shares of common stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell the shares of common stock from time to time under
this prospectus, or under an amendment to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act of 1933
amending the list of Selling Stockholders to include the pledgee, transferee or
other successors in interest as Selling Stockholders under this prospectus.
The Selling Stockholders and any broker-dealers or agents that are involved
in selling the shares may be deemed to be "underwriters" within the meaning of
the Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. The Selling Stockholders have informed the
Company that it does not have any agreement or understanding, directly or
indirectly, with any person to distribute the Common Stock.
The Company is required to pay all fees and expenses incident to the
registration of the shares. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
