EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
the 13th day of June, 2003, by and between (i) Corixa Corporation, a
Delaware corporation (the "Company"), (ii) each person listed on Exhibit A
attached hereto (collectively, the "Initial Investors" and each individually, an
"Initial Investor"), and (iii) each person or entity that subsequently becomes a
party to this Agreement pursuant to, and in accordance with, the provisions of
Section 11 hereof (collectively, the "Investor Permitted Transferees" and each
individually an "Investor Permitted Transferee").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investors, and the Initial Investors have agreed to purchase from the Company,
shares (the "Purchased Shares") of the Company's common stock, $0.001 par value
per share (the "Common Stock") and warrants to purchase ___ shares of Common
Stock for every Purchased Share purchased (the "Warrants"), all upon the terms
and conditions set forth in that certain Securities Purchase Agreement, dated
June 8, 2003, between the Company and the Initial Investors (the "Purchase
Agreement"); and
WHEREAS, the terms of the Purchase Agreement provide that it shall be a
condition precedent to the closing of the transactions thereunder for the
Company and the Initial Investors to execute and deliver this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Board" shall mean the board of directors of the Company.
"Closing" shall have the meaning ascribed to such term in the Purchase
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
"Investors" shall mean, collectively, the Initial Investors and the
Investor Permitted Transferees; provided, however, that the term "Investors"
shall not include any of the Initial Investors or any of the Investor Permitted
Transferees that ceases to own or hold any of its Securities.
"Majority Holders" shall mean, at the relevant time of reference
thereto, those Investors holding and/or having the right to acquire, as the case
may be, more than a majority of the Registrable Shares then held by all of the
Investors.
"Registrable Shares" shall mean the Purchased Shares and the Underlying
Shares prior to the Mandatory Registration Termination Date (as defined below).
"Rule 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall mean the Purchased Shares, the Underlying Shares and
the Warrants.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated thereunder.
"Suspension Period" shall mean each period of time during which the
right of the selling Investors to use the Registration Statement (and the
prospectus relating thereto) is delayed or suspended pursuant to Sections 4(c)
or 9 hereof.
"Underlying Shares" shall mean the shares of Common Stock issuable upon
exercise of the Warrants.
2. EFFECTIVENESS. This Agreement shall become effective and
legally binding only if the Closing occurs.
3. MANDATORY REGISTRATION.
(a) No later than 10 business days after the Closing, the
Company will prepare and file with the SEC a registration statement on Form S-3
for the purpose of registering under the Securities Act all of the Registrable
Shares for resale by, and for the account of, the Investors as selling
stockholders thereunder (the "Registration Statement"). Unless otherwise
directed in writing by the Majority Holders, the Registration Statement shall
contain the Plan of Distribution attached hereto as Exhibit C. The Registration
Statement shall permit the Investors to offer and sell, on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, any or all of
the Registrable Shares. In the event that the Registration Statement is reviewed
by the staff of the SEC, then prior to the effectiveness of the Registration
Statement, the Company shall respond in writing to any comment letter issued by
the SEC relating to the Registration Statement within 5 business days after
receipt of such SEC comment letter. The Company agrees to use reasonable efforts
to cause the Registration Statement to become effective as soon as practicable,
but in no event later than 90 days after the Registration Statement is filed by
the Company.
(b) The Company shall be required to keep the
Registration Statement effective until the earliest of (i) the date on which all
of the Investors may sell all of the Registrable Shares without restriction
pursuant to Rule 144(k) (or the successor rule thereto) promulgated under the
Securities Act, (ii) the date when all of the Registrable Shares registered
thereunder shall have been sold and (iii) the fifth anniversary of the Closing,
subject to extension as set forth below (such date is referred to herein as the
"Mandatory Registration Termination Date"). Thereafter, the Company shall be
entitled to withdraw the Registration Statement and the Investors shall have no
further right to offer or sell any of the Registrable Shares pursuant to the
Registration Statement (or any prospectus relating thereto). In the event the
right of the selling Investors to use the Registration Statement (and the
prospectus relating thereto) is delayed or suspended pursuant to Sections 4(c)
or 9 hereof, the Company shall be required to extend the Mandatory Registration
Termination Date beyond the fifth anniversary of the Closing by the same number
of days as such delay or Suspension (as defined in Section 9 hereof) is in
effect.
2
(c) In the event that the Company does not (i) file the
Registration Statement within 10 business days after the Closing, (ii) deliver
its response letter to the SEC within 5 business days after receipt thereof,
(ii) obtain the effectiveness of the Registration Statement within 90 days after
the Registration Statement is filed by the Company or (iii) restrict the
occurrence and duration of Suspension Periods to not more than two, for not more
than an aggregate of 90 days, in any twelve-month period on or before the second
anniversary of the Closing, then the Company shall pay to each Investor 1.0% of
such Investor's aggregate purchase price per month (on a pro-rated basis) for
the period commencing on the required filing date, response date, effective date
or date on which there occurs a violation with respect to a Suspension Period,
as applicable, and ending on the date the Registration Statement is filed, the
response letter is delivered to the SEC, the Registration Statement is declared
effective or the Suspension Period terminates, as applicable.
4. OBLIGATIONS OF THE COMPANY. In connection with the Company's
obligation under Section 3 hereof to file the Registration Statement with the
SEC and to use its reasonable efforts to cause the Registration Statement to
become effective as soon as practicable, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
the Mandatory Registration Termination Date, including without limitation such
amendments and supplements as may be necessary to include any Investor Permitted
Transferees in the Registration Statement and related prospectus;
(b) Furnish to the selling Investors such number of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents (including,
without limitation, prospectus amendments and supplements as are prepared by the
Company in accordance with Section 4(a) above) as the selling Investors may
reasonably request in order to facilitate the disposition of such selling
Investors' Registrable Shares;
(c) Notify the selling Investors, at any time when a
prospectus relating to the Registration Statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in or relating to the Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading; and, thereafter, the Company will, subject to
Section 9, promptly prepare (and, when completed, furnish an adequate number of
copies to each selling Investor) a supplement or amendment to such prospectus so
that, as furnished to the purchasers of such Registrable Shares, such prospectus
will not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading; provided that upon
such notification by the Company, the selling Investors will not offer or sell
Registrable Shares until the Company has notified the selling Investors that it
has prepared a supplement or amendment to such prospectus and delivered copies
of such supplement or amendment to the selling Investors (it being understood
and agreed by the Company that the foregoing proviso shall in no way diminish or
otherwise impair the Company's obligation, subject to Section 9, to promptly
prepare a prospectus amendment or supplement as above provided in this Section
4(c) and deliver copies of same as above provided in Section 4(b) hereof); and
3
(d) Use reasonable efforts to register and qualify the
Registrable Shares covered by the Registration Statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
appropriate in the opinion of the Company, 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, and provided further that (notwithstanding anything in this
Agreement to the contrary with respect to the bearing of expenses) if any
jurisdiction in which any of such Registrable Shares shall be qualified shall
require that expenses incurred in connection with the qualification therein of
any such Registrable Shares be borne by the selling Investors, then the selling
Investors shall, to the extent required by such jurisdiction, pay their pro rata
share of such qualification expenses.
(e) Subject to the terms and conditions of this
Agreement, the Company shall use reasonable efforts to (i) prevent the issuance
of any stop order or other suspension of effectiveness of a Registration
Statement, or the suspension of the qualification of any of the Registrable
Shares for sale in any jurisdiction in the United States, (ii) if such an order
or suspension is issued, obtain the withdrawal of such order or suspension at
the earliest practicable moment and notify each holder of Registrable Shares of
the issuance of such order and the resolution thereof or its receipt of notice
of the initiation or threat of any proceeding such purpose.
(f) The Company shall (i) timely notify the Nasdaq
National Market of the issuance of the Securities and (ii) engage a transfer
agent and registrar to maintain the Company's stock ledger for all Registrable
Shares covered by the Registration Statement not later than the effective date
of the Registration Statement.
5. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
each selling Investor shall complete the Registration Statement Questionnaire
attached hereto as Appendix I, and shall furnish to the Company such other
information regarding it and the securities held by it as the Company shall
reasonably request and as shall be required in order to effect any registration
by the Company pursuant to this Agreement.
6. EXPENSES OF REGISTRATION. All expenses incurred in connection
with the registration of the Registrable Shares pursuant to this Agreement
(excluding underwriting, brokerage and other selling commissions and discounts),
including without limitation (a) all registration and qualification and filing
fees, (b) printing, and (c) fees and disbursements of counsel for the Company,
and (d) one counsel for the Initial Investors shall be borne by the Company;
provided, however, that the aggregate amount of fees and disbursements that the
Company shall be obligated to bear pursuant to Section 6(d) and Section 7.1 of
the Purchase Agreement shall not exceed $100,000.
7. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
selling Investor, each partner, former partner, officer and director of such
selling Investor, and each person, if any, who controls such selling Investor,
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under
4
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 or alleged untrue statement of any material fact contained in the
Registration Statement, in any preliminary prospectus or final prospectus
relating thereto or in any amendments or supplements to the Registration
Statement or any such preliminary prospectus or final prospectus, 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, or arise out of or are based upon any failure by the
Company to fulfill any undertaking included in the Registration Statement; and
will reimburse such selling Investor or any such partner, former partner
officer, director or controlling person, for 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 Section 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 in any such case
for any such loss, damage, liability or action to the extent that it arises out
of or is based upon (i) an untrue statement or alleged untrue statement or
omission made in connection with the Registration Statement, any preliminary
prospectus or final prospectus relating thereto or any amendments or supplements
to the Registration Statement or any such preliminary prospectus or final
prospectus, in reliance upon and in conformity with written information
furnished expressly for use in connection with the Registration Statement or any
such preliminary prospectus or final prospectus by such selling Investors, or
(ii) an untrue statement or alleged untrue statement or omission in the
Registration Statement or any prospectus that is corrected in any subsequent
amendment or supplement to the Registration Statement or prospectus that was
delivered to the selling Investor before the pertinent sale or sales by the
selling Investor.
(b) Each selling Investor will severally and not jointly
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement, each person, if any, who
controls the Company within the meaning of the Securities Act, and all other
selling Investors against any losses, claims, damages or liabilities to which
the Company or any such director, officer, controlling person or such other
selling Investor may become subject to, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement or any preliminary
prospectus or final prospectus, relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent and only to the extent that such untrue statement or alleged untrue
statement or omission (i) was made in the Registration Statement, in any
preliminary prospectus or final prospectus relating thereto or in any amendments
or supplements to the Registration Statement or any such preliminary prospectus
or final prospectus, in reliance upon and in conformity with written
information furnished by such selling Investor expressly for use in connection
with the Registration Statement, or any preliminary prospectus or final
prospectus, or (ii) was corrected in any subsequent amendment or supplement to
the Registration Statement or prospectus that was delivered to the selling
Investor before the pertinent sale or sales by the selling Investor and such
corrected amendment or supplement to the Registration
5
Statement or prospectus was not delivered to the purchaser; and such selling
Investor will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person or other selling
Investor in connection with investigating or defending any such loss, claim,
damage, liability or action, provided, however, that the liability of each
selling Investor hereunder shall be limited to the proceeds received by such
selling Investor from the sale of Registrable Shares covered by the
Registration Statement, and provided further, that the indemnity agreement
contained in this Section 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 those selling Investor(s) against which the
request for indemnity is being made (which consent shall not be unreasonably
withheld).
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party desires, jointly with
any other indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the indemnifying parties
and indemnified parties (which counsel shall not, except with the written
consent of the indemnified party or parties, be counsel to the indemnifying
party or parties). In the event that the indemnifying party assumes any such
defense, the indemnified party may participate in such defense with its own
counsel and at its own expense, provided, however, that the counsel for the
indemnifying party shall act as lead counsel in all matters pertaining to such
defense or settlement of such claim and the indemnifying party shall only pay
for such indemnified party's expenses for the period prior to the date of its
participation on such defense. The failure to notify an indemnifying party
promptly of the commencement of any such action shall not relieve such
indemnifying party of any liability to the indemnified party under this Section
7 except to the extent that such indemnifying party is materially prejudiced
thereby.
(d) Notwithstanding anything to the contrary herein, the
indemnifying party shall not be entitled to settle any claim, suit or proceeding
arising out of or based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement or any preliminary
prospectus or final prospectus, relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, or arising out of or 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, unless in connection
with such settlement, the indemnified party receives an unconditional release
with respect to the subject matter of such claim, suit or proceeding and such
settlement does not contain any admission of fault by the indemnified party.
(e) If the indemnification provided for in this Section 7
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Investors
on the other in connection with the statements or omissions or other
6
matters which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, in the case of an untrue statement, whether the untrue statement
relates to information supplied by the Company on the one hand or an Investor on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement. The Company and the
Investors agree that it would not be just and equitable if contribution pursuant
to this subsection (e) were determined by pro rata allocation (even if the
Investors were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (e), no Investor
shall be required to contribute any amount in excess of the amount by which the
gross amount received by the Investor from the sale of the Registrable Shares to
which such loss relates exceeds the amount of any damages which such Investor
has otherwise been required to pay by reason of such untrue statement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Investors' obligations in
this subsection to contribute are several in proportion to their sales of
Registrable Shares to which such loss relates and not joint.
(f) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were represented by counsel during
the negotiations regarding the provisions hereof including, without limitation,
the provisions of this Section 7, and are fully informed regarding said
provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to investigate
the Company and its business in order to assure that adequate disclosure is made
in the Registration Statement as required by the Securities Act and the Exchange
Act.
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Investors the benefits of Rule 144 and any other rule or
regulation of the SEC that may at any time permit the Investors to sell the
Registrable Shares to the public without registration, the Company covenants and
agrees: (i) to make and keep public information available, as those terms are
understood and defined in the General Instructions to Form S-3, or any successor
or substitute form, and in Rule 144, (ii) to file with the SEC in a timely
manner all reports and other documents required to be filed by an issuer of
securities registered under the Securities Act or the Exchange Act, (iii) as
long as any Investor owns any Securities, to furnish in writing upon such
Investor's request a written statement by the Company that it has complied with
the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, and to furnish to such Investor a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing such Investor of
any rule or regulation of the SEC permitting the selling of any such Registrable
Shares without registration and (iv) undertake any additional actions
commercially reasonable and necessary to maintain the availability of the
Registration Statement or the use of Rule 144.
7
9. DEFERRAL AND LOCK-UP.
(a) Notwithstanding anything in this Agreement to the
contrary, in the event: (i) of any request by the SEC or any other federal or
state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to a Registration Statement
or related prospectus or for additional information; (ii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose; (iii) 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 Shares for sale in any jurisdiction
or the initiation of any proceeding for such purpose; or (iv) of any event or
circumstance which necessitates the making of any changes in the Registration
Statement or related prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (a "Disclosure Event"); then the Company shall deliver
a certificate in writing to each Investor (the "Suspension Notice") to the
effect of the foregoing and, upon receipt of such Suspension Notice, the
Investor will (i) keep the fact of such certificate and its contents
confidential, and (ii) refrain from selling any Registrable Shares pursuant to
the Registration Statement (a "Suspension") until the Investor's receipt of
copies of a supplemented or amended prospectus prepared and filed by the
Company, or until it is advised in writing by the Company that the current
prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in any such prospectus.
(b) In the event of any Suspension, the Company will use
its best efforts to cause the use of the prospectus so suspended to be resumed
as soon as reasonably practicable after delivery of a Suspension Notice to the
Investors; provided, however, that if the Company shall state in the Suspension
Notice that the Board of Directors of the Company has determined in good faith
that premature disclosure of a Disclosure Event (i) would be materially adverse
to any proposed material transaction that is the subject of the Disclosure Event
or (ii) would make the successful consummation by the Company of such material
transaction significantly less likely, then the Company shall have the right to
extend the Suspension for up to the maximum period provided in Section 9(c)
below.
(c) Notwithstanding the remainder of this Section 9, the
Investors shall not be prohibited from selling Registrable Shares under the
Registration Statement as a result of Suspensions on more than two occasions,
for not more than an aggregate of 90 days in any twelve-month period, unless, in
the good faith judgment of the Company's Board of Directors, upon advice of
counsel, the sale of Registrable Shares under the Registration Statement in
reliance on this paragraph would be reasonably likely to cause a violation of
the Securities Act or the Exchange Act and result in potential liability to the
Company. Provided that a Suspension is not then in effect, the Investors may
sell Registrable Shares under the Registration Statement,
8
provided that they arranges for delivery of a current prospectus to the
transferee of such Registrable Shares.
10. TRANSFER RESTRICTIONS.
(a) Each Investor agrees that it will not sell, offer to
sell, solicit offers to buy, dispose of, loan, pledge or grant any right with
respect to (collectively, a "Disposition"), the Securities, nor will such
Investor engage in any hedging or other transaction which is designed to or
could be reasonably expected to lead to or result in a Disposition of Securities
by such Investor or any other person or entity unless (a) the Securities are
registered under the Securities Act, (b) the Securities are transferred in
compliance with Rule 144 under the Securities Act, (c) the Securities are
transferred to any affiliate, donee or distributee of such Investor in
compliance with the Securities Act or (d) such Investor shall have delivered to
the Company an opinion of counsel in form, substance and scope reasonably
acceptable to the Company, to the effect that registration is not required under
the Securities Act or any applicable state securities law due to the
applicability of an exemption therefrom. Such prohibited hedging or other
transactions would include, without limitation, effecting any short sale or
having in effect any short position (whether or not such sale or position is
against the box and regardless of when such position was entered into) or any
purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to the Securities or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common Stock of the Company.
(b) Such Investor acknowledges and agrees that the
Warrants are not transferable without the prior written consent of the Company,
except under the limited circumstances provided in the Warrants.
(c) Such Investor acknowledges and agrees that no sales
of the Registrable Shares may be made under the Registration Statement and that
the Registrable Shares are not transferable on the books of the Company unless
the certificate submitted to the transfer agent evidencing the Registrable
Shares is accompanied by a separate Transfer Notice for Sales Pursuant to
Registration Statement: (i) in the form of Appendix II hereto; (ii) executed by
an officer of, or other authorized person designated by, the Investor; and (iii)
to the effect that (A) the Registrable Shares have been sold in accordance with
the Registration Statement, the Securities Act and any applicable state
securities or blue sky laws, and (B) the requirement of delivering a current
prospectus has been satisfied.
(d) Each Investor understands and agrees that no action
has been or will be taken in any jurisdiction outside the United States by the
Company or the Placement Agent that would permit an offering of the Registrable
Shares, or possession or distribution of offering materials in connection with
the issue of Registrable Shares, in any jurisdiction outside of the United
States where action for that purpose is required. Each Investor outside the
United States will comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases, offers, sells or delivers
Registrable Shares or has in its possession or distributes any offering
material, in all cases at its own expense.
9
11. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any
Investor under this Agreement shall be transferred or assigned to any person
unless (i) such person is a Qualifying Holder (as defined below), and (ii) such
person agrees to become a party to, and bound by, all of the terms and
conditions of, this Agreement by duly executing and delivering to the Company an
Instrument of Adherence in the form attached as Exhibit B hereto. For purposes
of this Section 11, the term "Qualifying Holder" shall mean, with respect to any
Investor, (i) any current or former partner or current or former member thereof,
(ii) any corporation, partnership or limited liability company controlling,
controlled by, or under common control with, such Investor or any partner or
member thereof, or (iii) any other direct transferee from such Investor of at
least 50% of those Registrable Shares held by such Investor or issuable upon
exercise of Warrants held by such Investor. None of the rights of any Investor
under this Agreement shall be transferred or assigned to any person (including,
without limitation, a Qualifying Holder) that acquires Registrable Shares in the
event that, and to the extent that, such person is then eligible to resell such
Registrable Shares pursuant to Rule 144(k) of the Securities Act.
12. INFORMATION AVAILABLE. So long as the Registration Statement
is effective covering the resale of Registrable Shares owned by the Investors,
the Company will make available to the Investors (including via XXXXX):
(a) as soon as practicable after it is available, one
copy of (i) its Annual Report to Stockholders (which Annual Report shall contain
financial statements audited in accordance with generally accepted accounting
principles by a national firm of certified public accountants) and (ii) if not
included in the Annual Report to Stockholders, its Annual Report on Form 10-K
(the foregoing, in each case, excluding exhibits); and
(b) upon the reasonable request of the Investor, all
exhibits excluded by the parenthetical to subparagraph (a)(ii) of this Section
12 as filed with the SEC and all other information that is made available to
stockholders.
(c) upon the reasonable request of the Investor, an
adequate number of copies of the prospectuses to supply to any other party
requiring such prospectuses.
13. ENTIRE AGREEMENT. This Agreement and the Purchase Agreement
constitute and contain the entire agreement and understanding of the parties
with respect to the subject matter hereof, and also supersede any and all prior
negotiations, correspondence, agreements or understandings with respect to the
subject matter hereof.
14. MISCELLANEOUS.
(a) No modification, alteration, waiver or change in any
of the terms of this Agreement shall be valid or binding upon the parties hereto
unless made in writing and duly executed by the Company and the Majority
Holders.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware and without regard to any
conflicts of laws concepts which would apply the substantive law of some other
jurisdiction, and shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, personal representatives, successors or
assigns, provided that the terms and conditions of Section 11 hereof are
satisfied. This
10
Agreement shall also be binding upon and inure to the benefit of any transferee
of any of the Securities, provided that the terms and conditions of Section 11
hereof are satisfied. Notwithstanding anything in this Agreement to the
contrary, if at any time any Investor shall cease to own all of its Securities,
all of such Investor's rights under this Agreement shall immediately terminate.
(c) Any notice required or permitted by this Agreement
shall be in writing and shall be sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below (if to the Company) or as set forth in
Exhibit A (if to an Investor), or as subsequently modified by written notice:
If to the Company: Corixa Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxxx Xxxxxx
With a copy to: Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
(d) The parties acknowledge and agree that in the event
of any breach of this Agreement, remedies at law may be inadequate, and each of
the parties hereto shall be entitled to seek specific performance of the
obligations of the other parties hereto and such appropriate injunctive relief
as may be granted by a court of competent jurisdiction.
(e) This Agreement may be executed in a number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
11
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
THE COMPANY:
CORIXA CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: CEO
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INVESTORS:
SPROUT IX PLAN INVESTORS, L.P.
By DLJ LBO Plans Management
Corporation II, its General Partner
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: Attorney in Fact
Address: Eleven Xxxxxxx Xxx.
XX, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
12
SPROUT ENTREPRENEURS FUND, L.P.
By DLJ Capital Corporation, its
General Partner
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: Director
Address: Eleven Xxxxxxx Xxx.
XX, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
SPROUT CAPITAL IX, L.P.
By DLJ Capital Corporation, its
General Partner
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: Director
Address: Eleven Xxxxxxx Xxx.
XX, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: Director
Address: Eleven Xxxxxxx Xxx.
XX, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
13
EXHIBIT A
SCHEDULE OF INVESTORS
AGGREGATE PURCHASE PRICE
PURCHASER (APPROXIMATE)
----------------------------------------------------------------
Sprout IX Plan Investors, L.P. $ 1,316,544
----------------------------------------------------------------
Sprout Entrepreneurs Fund, L.P. $ 112,352
----------------------------------------------------------------
Sprout Capital IX, L.P. $ 28,508,618
----------------------------------------------------------------
DLJ Capital Corporation $ 62,486
----------------------------------------------------------------
TOTAL $ 30,000,000
----------------------------------------------------------------
EXHIBIT B
INSTRUMENT OF ADHERENCE
Reference is hereby made to that certain Registration Rights Agreement,
dated as of __________ __, 2003, between Corixa Corporation, a Delaware
corporation (the "Company"), the Initial Investors and the Investor Permitted
Transferees, as amended and in effect from time to time (the "Registration
Rights Agreement"). Capitalized terms used herein without definition shall have
the respective meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of [___________
shares][warrants to purchase ________ shares] of common stock, par value $0.001
per share (the "Common Stock"), of the Company, hereby agrees that, from and
after the date hereof, the undersigned has become a party to the Registration
Rights Agreement in the capacity of an Investor Permitted Transferee, and is
entitled to all of the benefits under, and is subject to all of the obligations,
restrictions and limitations set forth in, the Registration Rights Agreement
that are applicable to Investor Permitted Transferees. This Instrument of
Adherence shall take effect and shall become a part of the Registration Rights
Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
________________.
Signature: _____________________________
Name: ______________________
Title: ______________________
Accepted:
Corixa Corporation
By: ______________________________
Xxxxxxxx Xxxxxx
Chief Financial Officer
Date: ______________________________
EXHIBIT C
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares of common stock from time
to time. When we use the term "selling stockholders" in this prospectus, it
includes donees, distributees, pledgees and other transferees who are selling
shares received after the date of this prospectus from a selling stockholder
whose name appears in "Selling Stockholders". If we are notified by a selling
stockholder that a donee, distributee, pledgee or other transferee intends to
sell more than 500 shares, we will file a supplement to the prospectus if
required by law. The selling stockholders will act independently of us in making
decisions regarding the timing, manner and size of each sale. The selling
stockholders may make these sales on the Nasdaq National Market or otherwise, at
prices and terms that are then-prevailing or at prices related to the
then-current market price, at fixed prices or in privately negotiated
transactions. The selling stockholders may use one or more of the following
methods to sell the shares of common stock or preferred stock:
- a block trade in which a selling stockholder's broker or dealer
will attempt to sell the shares as agent, but may position and
resell all or a portion of the block as a principal to facilitate
the transaction;
- a broker or dealer may purchase the common stock or preferred
stock as a principal and then resell the shares for its own
account pursuant to this prospectus;
- an exchange or over-the-counter distribution in accordance with
the rules of the applicable exchange or Nasdaq;
- a pledge to secure debt and other obligations; and
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers.
The selling stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
these transactions, broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with the selling stockholders.
The selling stockholders also may sell shares short and redeliver the shares to
close out short positions. The selling stockholders may enter into option or
other transactions with broker-dealers that require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer the shares under this prospectus. The selling stockholders also may
loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
loaned shares, or upon a default the broker-dealer may sell the pledged shares
under this prospectus.
In effecting sales, broker-dealers engaged by the selling stockholders
may arrange for other broker-dealers to participate in the resales. To the
extent required, this Prospectus will be amended and supplemented from time to
time to describe a specific plan of distribution.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker- dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principal, or both. Compensation
as to a particular broker-dealer might be in excess of customary commissions and
will be in amounts to be negotiated in connection with the sale. Broker-dealers
or agents and any other participating broker-dealers or the selling stockholders
may be deemed to be "underwriters" within the meaning of section 2(a)(11) of the
Securities Act in connection with sales of the shares. Accordingly, any such
commission, discount or concession received by them and any profit on the resale
of the shares purchased by them may be deemed to be underwriting discounts or
concessions under the Securities Act. Because selling stockholders may be deemed
"underwriters" within the meaning of section 2(a)(11) of the Securities Act, the
selling stockholders will be subject to the prospectus delivery requirements of
the Securities Act.
Any shares covered by this prospectus which qualify for sale pursuant
to Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sale of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. We have agreed to
indemnify the selling stockholders against certain liabilities in connection
with their offering of the shares, including liabilities arising under the
Securities Act.
2
APPENDIX I
CORIXA CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
________________________________________________
2. Please provide the number of securities that you or your organization
will own immediately after Closing, including those Purchased Shares
and Warrants purchased by you or your organization pursuant to the
Securities Purchase Agreement and those securities purchased by you or
your organization through other transactions:
Purchased Shares: _____________________________________________________
Warrants: _____________________________________________________________
Other Shares of Common Stock: _________________________________________
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
________________________________________________
________________________________________________
________________________________________________
________________________________________________
APPENDIX II
CORIXA CORPORATION
TRANSFER NOTICE FOR SALES PURSUANT TO REGISTRATION STATEMENT
ATTENTION:
Xxxxxxxx Xxxxxx
Corixa Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
This Transfer Notice relates to _____________ shares (the "Shares") of
the common stock, $0.001 par value per share, of Corixa Corporation, a Delaware
corporation, registered in the name of ____________________________ (the
"Transferor"). The beneficial owner of the Shares is ___________________________
_______________________.(1)
The undersigned Transferor desires to assign and transfer the Shares
through the following broker:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PRINT OR TYPE BROKER'S NAME, ADDRESS AND TELEPHONE NUMBER)
The name, address and telephone number of a contact person regarding
this transaction (if different from above) is:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PRINT OR TYPE BROKER'S NAME, ADDRESS AND TELEPHONE NUMBER)
The undersigned Transferor confirms that:
1. the Shares are being transferred pursuant to an effective
registration statement on Form S-3 under the Securities Act of
1933;
------------------
(1) A "beneficial owner" of the Shares includes any person who, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares (i) voting power, which includes the power to vote, or
to direct the voting of, the Shares; and/or (ii) investment power, which
includes the power to dispose, or to direct the disposal of, the Shares.
2. the Shares are being transferred in compliance with any
applicable blue sky securities laws of any state;
3. the prospectus delivery requirements under the Securities Act
have been or will be satisfied; and
4. the prospectus so delivered correctly describes the Transferor
and the Transferor's method of sale or other distribution of
the Shares.
Signature: ____________________________________________________________
(SIGN EXACTLY AS SHARES ARE REGISTERED ON CORIXA
CORPORATION'S BOOKS; IF REGISTERED STOCKHOLDER IS AN ENTITY,
INDICATE SIGNATORY'S OFFICIAL CAPACITY WITH RESPECT TO THE
REGISTERED HOLDER)
Date:_________________
