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Exhibit 99.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of July 13, 2000, by and
among Avant Immunotherapeutics, Inc., a Delaware corporation (the "Company"),
and the Persons set forth on Schedule I attached hereto (the "Investors").
This Agreement is made pursuant to a certain Securities Purchase
Agreement dated as of the date hereof by and among the Company and the
purchasers named therein (the "Purchase Agreement"). The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, agree as follows:
1. REGISTRATION STATEMENTS.
(a) SHELF REGISTRATION.
(i) The Company shall, on or before the date which is 20
days after the Closing Date, prepare and file with the Commission under the
Securities Act a Registration Statement on Form S-3 for sale of the Registrable
Securities by the Investors on a delayed or continuous basis under Rule 415 of
the Securities Act, and shall use its best efforts to cause such Registration
Statement to be declared effective at the earliest practicable date, but in no
event later than the 120 th day after the Closing Date. The Company shall at its
own expense, subject to Section 1(a)(iv), ensure the availability of a
Prospectus meeting the requirements of Section 10(a) of the Securities Act and
shall take any and all other actions necessary in order to ensure the ability of
the holders of all of the Registrable Securities to effect a resale of their
Registrable Securities, for such period as the Company is obligated to maintain
the effectiveness of a Registration Statement pursuant to Section 1(a)(ii).
(ii) The Company shall use its best efforts to cause any
such Registration Statement described in Section 1(a)(i) to remain effective
(or, if required by applicable law, to cause another Registration Statement with
respect to the Registrable Securities to become and remain effective) until the
earliest to occur of: (i) such time as all the Registrable Securities have been
sold by the Investors; (ii) such time as all the Registrable Securities held by
the Investors could be sold under Rule 144 of the Securities Act during any
90-day period without restriction (including without limitation as to volume by
each holder thereof); and (iii) the date which is two years after the Effective
Date.
(iii) The Company shall, at all times during the
Registration Period, subject to Section 1(a)(iv), promptly: (A) file such
amendments to the Registration Statement and the Prospectus, file such documents
as may be required to be incorporated by reference in any of such documents, and
take all other actions as may be necessary to ensure to the holders of
Registrable Securities the ability to effect the public resale of their
Registrable Securities (including without limitation taking any actions
necessary to ensure the availability of a Prospectus meeting the requirements of
Section 10(a) of the Securities Act) continuously through
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the Registration Period; and (B) provide each holder of Registrable Securities
copies of any documents prepared pursuant to Section 1(a)(iv)(A) promptly after
such preparation.
(iv) The Company may suspend the effectiveness of any
Registration Statement filed pursuant to this Section 1(a) if, in its reasonable
judgment, (A) maintaining the effectiveness of such Registration Statement at
such time would materially adversely affect a proposed financing, reorganization
or recapitalization of the Company, or pending negotiations relating to a
merger, consolidation, acquisition or similar transaction involving the Company;
or (B) financial statements meeting the requirements of Regulation S-X are not
available at such time because of any such pending proposal or negotiations;
provided, however, that the right of the Company pursuant to this subsection
(iv) to suspend the effectiveness of the Registration Statement shall not extend
for more than 30 consecutive days for any single suspension event and may not be
exercised more than twice during any period of 12 consecutive months; and
provided, further, that the Company shall give to each holder of Registrable
Securities prior written notice of such suspension.
(b) AMENDMENTS. Upon the occurrence of any event that would cause any
Registration Statement (i) to contain a material misstatement or omission or
(ii) not to be effective and usable for resale of Registrable Securities during
the period that such Registration Statement is required to be effective and
usable, the Company shall promptly file an amendment to the Registration
Statement, in the case of clause (i), correcting any such misstatement or
omission, and in the case of either clause (i) or (ii), using its best efforts
to cause such amendment to be declared effective and such Registration Statement
to become usable as soon as practicable thereafter.
(c) REPRESENTATION AND WARRANTY. The Company represents and warrants to
the Investors that (i) the Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein), at the time it is first
filed with the SEC, at the time it is ordered effective by the SEC and at all
times during which it is required to be effective hereunder (and each such
amendment and supplement at the time it is filed with the SEC and at all times
during which it is available for use in connection with the offer and sale of
the Registrable Securities) shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (ii) the Prospectus, at the
time the Registration Statement is declared effective by the SEC and at all
times, subject to Section 1(a)(iv) hereof, that the Prospectus is required by
this to be available for use by any Investor and, in accordance with this
Agreement, any Investor is entitled to sell Registrable Securities pursuant to
the Prospectus, shall not contain any 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 in which they were
made, not misleading.
2. REGISTRATION PROCEDURES.
In connection with any Registration Statement and subject to the
provisions of Section 1, the Company shall use its best efforts to effect such
registration to permit the sale of the Registrable Securities being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company shall as expeditiously as possible:
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(a) prepare and file with the Commission a Registration Statement
relating to the registration on Form S-3 under the Securities Act, which form
shall be available for the sale of the Registrable Securities being sold in
accordance with the intended method or methods of distribution thereof and shall
include all financial statements required by the Commission to be filed
therewith (including, if required by the Securities Act or any regulation
thereunder, financial statements of any Subsidiary (as defined in Rule 405 under
the Securities Act) of the Company which shall have guaranteed any indebtedness
of the Company), cooperate and assist in any filings required to be made with
the NASD and use its best efforts to cause such Registration Statement to become
effective and approved by such governmental agencies or authorities as may be
necessary to enable the selling holders to consummate the disposition of such
Registrable Securities;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the Registration Period; in the
case of any Registration Statement filed pursuant to Rule 415 under the
Securities Act, cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner, and to comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(c) advise the holders of the Registrable Securities promptly (and
in any event within one Business Day, by e-mail, fax or other type of
communication) and, if requested by such Persons, confirm such advice in
writing:
(i) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment thereto, when the same has become
effective;
(ii) of the existence of any fact and the happening of any
event that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading; and
(iii) of the issuance by the Commission of any stop order
or other order suspending the effectiveness of the Registration Statement, or
any order issued by any state securities commission or other regulatory
authority suspending the qualification or exemption from qualification of such
Registrable Securities under state securities or "blue sky" laws. If at any time
the Company shall receive any such stop order suspending the effectiveness of
the Registration Statement, or any such order from a state securities commission
or other regulatory authority, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time.
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(d) deliver to each holder of the Registrable Securities, without
charge, as many copies of the Prospectus and any amendment or supplement thereto
as such Persons may reasonably request; the Company consents to the use of the
Prospectus and any amendment or supplement thereto by each of the holders of the
Registrable Securities in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(e) prior to any public offering of Registrable Securities,
cooperate with the holders of the Registrable Securities and their respective
counsel in connection with the registration and qualification of the Registrable
Securities under the securities or "blue sky" laws of such jurisdictions as the
holders of the Registrable Securities may reasonably request and do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement;
(f) use its best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Registrable
Securities;
(g) if any fact or event contemplated by clause (c)(ii) above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(h) make available for inspection during normal business hours by
a representative of the holders of the Registrable Securities, and any attorney,
accountant or other professional retained by such holders, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such holder, attorney, accountant or other
professional in connection with such Registration Statement subsequent to the
filing thereof and prior to its effectiveness, except that the aforementioned
advisors may be required to sign a confidentiality agreement containing
customary terms and exceptions;
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission;
(j) use its best efforts to cause all Registrable Securities to be
listed on each securities exchange or market, if any, on which equity securities
issued by the Company are then listed; and
(k) use its best efforts to take all other steps necessary to
effect the registration of the Registrable Securities contemplated hereby.
It shall be a condition precedent to the obligations of the Company to
complete the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Investor that such Investor shall furnish
to the Company such information regarding
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itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be reasonably
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request.
Each Investor by such Investor's acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless such Investor has notified the Company of such
Investor's election to exclude all of such Investor's Registrable Securities
from the Registration Statement.
Each holder of the Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 2(c)(ii), or notice of a
stop order or suspension described in Section 2(c)(iii), such holder shall
forthwith discontinue disposition of Registrable Securities and cease to use the
Prospectus in use under such Registration Statement. The Company shall, as
promptly as practicable, provide each holder with copies of the supplemented or
amended Prospectus contemplated by Section 2(g), or advise the holders in
writing that the use of the Prospectus may be resumed, and promptly provide each
holder with copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus. If so directed by the Company, each
such holder shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
3. REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement shall be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation:
(a) all registration and filing fees and expenses (including
filings made with the NASD);
(b) fees and expenses of compliance with federal securities and
state "blue sky" or securities laws;
(c) expenses of printing (including printing certificates for the
Registrable Securities and Prospectuses), messenger and delivery services and
telephone;
(d) all application and filing fees in connection with listing the
Registrable Securities on a national securities exchange or automated quotation
system pursuant to the requirements hereof;
(e) all fees and disbursements of counsel of the Company and
independent certified public accountants of the Company (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
performance); and
(f) any reasonable out-of-pocket expenses of the holders of the
Registrable Securities (or the agents who manage their accounts); provided,
however, that each Investor shall be responsible for paying the underwriting
commissions or brokerage fees, and taxes of any
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kind (including, without limitation, transfer taxes) applicable to any
disposition, sale or transfer of the Registrable Securities and provided further
that the Company shall not be responsible for any legal, accounting or other
expenses incurred by the Investors in connection with the Registration
Statement.
The Company shall, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, rating
agency fees and the fees and expenses of any Person, including special experts,
retained by the Company.
In addition, notwithstanding anything to the contrary contained herein,
the Company shall pay all of the Investors' costs and expenses (including
reasonable legal fees) incurred in connection with the enforcement of the rights
of the Investors hereunder.
4. PENALTY
In the event that the Registration Statement has not (i) been filed
with the Commission within 20 days after the Closing Date or (ii) become
effective within 120 days after such Closing Date (each such event referred to
in clauses (i) and (ii), a "Registration Default"), for all or part of each
thirty (30) day period (a "Penalty Period") during which the Registration
Default remained uncured, the Company shall issue or pay, as applicable, to the
Investors within three (3) Business Days of the end of each such Penalty Period,
at (A) the Investor's sole election if the Market Value (as defined below) is
$7.85 or less at the time of the payment of the penalty, and (B) at the
Company's sole election if the Market Value is above $7.85 at the time of the
payment of the penalty, either: (i) a number of additional shares of Common
Stock equal to 1% of the Aggregate Purchase Price paid for all Registrable
Securities purchased by all such Investors pursuant to the Purchase Agreement,
divided by the Market Value (as defined hereafter), as of the last trading day
of the Penalty Period, of a share of Common Stock (the "Penalty Shares") or (ii)
a cash payment equal to the Market Value of the Penalty Shares; provided,
however, that in no event will the total number of shares issued pursuant to
this Agreement and the Purchase Agreement taken together exceed 19.9% of the
total number of shares of Common Stock outstanding on the Closing Date (the
"Maximum Percentage"), and if the total number of shares to be issued pursuant
to such agreements exceeds the Maximum Percentage, the Company shall, in
addition to issuing the number of Penalty Shares which can be issued up to the
Maximum Percentage, pay the Investors a cash payment equal to the Market Value
of the Penalty Shares which cannot be issued due to the limitations imposed by
the Maximum Percentage requirement; and provided further, however, that in no
event shall the total number of all payments under this Section (whether
consisting of Penalty Shares or cash) exceed 8.0% of the Aggregate Purchase
Price, with Penalty Shares valued as of the date of issuance as provided herein.
For purposes of this Agreement, the "Market Value" of a share of Common Stock
shall be the average of the high and low sales prices of the Common Stock on the
NASDAQ National Market on the last trading day in the relevant Penalty Period.
5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each holder
of the Registrable Securities and each Person, if any, who controls such holder
within the meaning of
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Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses
(including, without limiting the foregoing but subject to Section 5 (c),the
reasonable legal and other expenses incurred in connection with any action, suit
or proceeding or any claim asserted) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein 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, except insofar as such losses,
claims, damages, liabilities or expenses are caused by an untrue statement or
omission contained in information relating to such holder, furnished to the
Company in writing by such holder expressly for use therein.
(b) As a condition to the inclusion of its Registrable Securities
in any Registration Statement pursuant to this Agreement, each holder thereof
shall furnish to the Company in writing, promptly after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Registration Statement, Prospectus or preliminary prospectus
(including such completed and executed questionnaires as the Company may
reasonably request) and agrees to indemnify and hold harmless, severally and not
jointly, the Company and its directors, its officers who sign such Registration
Statement, and any Person controlling the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity from the Company to each holder and Persons controlling such
holder, but only to the extent of losses, claims, damages, liabilities or
expenses caused by an untrue statement or an omission contained in information
relating to such holder furnished in writing by such holder expressly for use in
such Registration Statement or the Prospectus or any preliminary prospectus
included therein, and of which none of the Company, its directors, officers or
Affiliates has any actual or constructive knowledge independent of such holder;
provided, however, that such holder of Registrable Securities shall not be
liable in any such case to the extent that the holder has furnished in writing
to the Company prior to the filing of any such Registration Statement,
Prospectus or preliminary prospectus information expressly for use in such
Registration Statement, Prospectus or preliminary prospectus which corrected or
made not misleading information previously furnished to the Company, and the
Company failed to include such information therein. In case any action shall be
brought against the Company, any of its directors, any such officer, or any such
controlling Person based on the Registration Statement, the Prospectus or any
preliminary prospectus and in respect of which indemnity may be sought against
one or more of the holders, such holders shall have the rights and duties given
to the Company by Section 5(c) (except that if the Company as provided in
Section 5(c) shall have assumed the defense thereof such holders shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof but the fees and expenses of such counsel shall be at such
holder's expense unless the conditions in clauses (i), (ii) or (iii) of Section
5(c) shall apply) and the Company and its directors, any such officers, and any
such controlling Person shall have the rights and duties given to the holders by
Section 5(c). In no event shall the aggregate liability of any selling holder
hereunder, together with any liability for contribution under Section 5(d), be
greater than the net proceeds (i.e., proceeds net of underwriting discounts,
fees, commissions and any other expenses payable by such selling holder)
received by such holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
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(c) In case any action or proceeding (including any governmental
or regulatory investigation or proceeding) shall be brought against any current
or former holder of the Registrable Securities or any Person controlling such
holder, with respect to which indemnity may be sought against the Company
pursuant to Section 5(a), such holder or such Person controlling such holder
shall promptly notify the Company in writing and the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such holder and payment of all fees and expenses relating thereto. Such holder
and such Persons controlling such holder shall have the right to employ separate
counsel in any such action or proceeding and participate in the defense thereof,
but the fees and expenses of such counsel shall be at such holder's expense
unless (i) the employment of such counsel has been specifically authorized in
writing by the Company, (ii) the Company has not assumed the defense and
employed counsel reasonably satisfactory to such holder within 15 days after
notice of any such action or proceeding, or (iii) the named parties to any such
action or proceeding(including any impleaded parties) include both such holder
or any Person controlling such holder and the Company and such holder or any
Person controlling such holder shall have been advised by such counsel that
there may be one or more legal defenses available to such holder or Person
controlling such holder that are different from or additional to those available
to the Company and, in the reasonable opinion of counsel to such holder or
Person controlling such holder, could not be asserted by the Company's counsel
without creating a conflict of interest (in which case the Company shall not
have the right to assume the defense of such action or proceeding on behalf of
such holder or controlling Person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to all
local counsel which is necessary, in the good faith opinion of both counsel for
the indemnifying party and counsel for the indemnified party in order to
adequately represent the indemnified parties) for all such holders and
controlling Persons, which firm shall be designated in writing by the holders of
a majority of the Registrable Securities currently or formerly held by such
holders and that all such fees and expenses shall be promptly reimbursed as they
are incurred upon written request and presentation of invoices). The Company
shall not be liable for any settlement of any such action effected without the
written consent of the Company (which consent shall not be unreasonably withheld
or delayed), but if settled with the written consent of the Company or if there
is a final judgment for the plaintiff, the Company agrees to indemnify and hold
harmless such holder and all Persons controlling such holder from and against
any loss or liability by reason of such settlement or judgment. The Company
shall not, without the prior written consent of the holder, effect any
settlement of any pending or threatened proceeding in respect of which any
holder or any Person controlling such holder is a party (or a potential party)
and indemnity has been sought hereunder by such holder or any Person controlling
such holder unless such settlement includes an unconditional release of such
holder or such controlling Person from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a), (b) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, 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, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and such
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holders on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and such holders on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company on the one hand or by such holders on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim.
(e) The Company and the holders of the Registrable Securities
agree that it would not be just and equitable if contribution pursuant to this
Section 5 were determined by a pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in subsection (d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred to
in subsection (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending any
such action, suit or proceeding. Notwithstanding any other provision of this
Agreement, no holder of the Registrable Securities shall be required to
contribute an amount greater than the net proceeds received by such holder with
respect to the sale of Registrable Securities giving rise to any indemnification
or contribution obligation under this Section 5. 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.
6. RULE 144. The Company agrees with each holder of Registrable
Securities to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time it is subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Securities upon request
(i) a written statement by the Company as to its compliance with the
requirements of said Rule 144(c) and the reporting requirements of the
Securities Act and the Exchange Act (at any time it is subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents of the Company as such
holder may reasonably request to avail itself of any similar rule or regulation
of the Commission allowing it to sell any such securities without registration.
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7. INTERPRETATION OF AGREEMENT; DEFINITIONS.
(a) DEFINITIONS. Unless the context otherwise requires, the terms
hereinafter set forth when used herein shall have the following meanings and the
following definitions shall be equally applicable to both the singular and
plural forms of any of the terms herein defined.
"AFFILIATE" means, as to any Person, a Person which directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, the first Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting stock, through an investment advisory or other fiduciary
arrangement, by contract or otherwise, and the term "controlled" shall have a
correlative meaning.
"AGGREGATE PURCHASE PRICE" means the aggregate price paid to the
Company by the Investors for the Registrable Shares under the Purchase
Agreement.
"AGREEMENT" means this Registration Rights Agreement and all Schedules
hereto.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which banks in Boston are required by law to close or are customarily closed.
"CLOSING DATE" means the "Closing Date" under the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Agreement such Commission is not existing and performing
the duties now assigned to it under the Exchange Act, then the Person performing
such duties at such time.
"COMMON STOCK" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which is not subject to redemption by the Company.
"COMPANY" has the meaning assigned in the first paragraph of this
Agreement.
"EFFECTIVE DATE" means the date the Registration Statement is declared
effective by the Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"INVESTORS" means, collectively, the Persons listed on Schedule I, and
any successors or permitted assignees of any of their rights hereunder that hold
Registrable Securities.
"NASD" means National Association of Securities Dealers, Inc.
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"OFFERING" means the sale of up to ______ shares of Common Stock
pursuant to a Purchase Agreement dated July 13, 2000.
"PERSON" means any natural person, corporation, partnership, limited
liability company, trust or unincorporated organization, incorporated
government, government agency or political subdivision thereof.
"PROSPECTUS" means the prospectus included in a Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"REGISTRABLE SECURITIES" means (a) all shares of Common Stock purchased
in the Offering, (b) Penalty Shares, if any, and (c) any shares of capital stock
issued or issuable, from time to time, upon any reclassification, share
combination, share subdivision, stock split, share dividend, merger,
consolidation or similar transaction or event or otherwise as a distribution on,
in exchange for or with respect to any of the foregoing, in each case held at
the relevant time by an Investor. As to any particular securities, such
securities will cease to be Registrable Securities when (i) they have been
transferred in a public offering registered under the Securities Act, (ii) they
have been transferred in a sale made through a broker, dealer or market-maker
pursuant to Rule 144 under the Securities Act or (iii) the holder thereof is
able to sell all of such securities under Rule 144 under the Securities Act
during any 90-day period without restriction (including without limitation, as
to volume by the holder thereof).
"REGISTRATION PERIOD" means the period from and after the Effective
Date until the time determined by Section 1(a)(ii) hereof.
"REGISTRATION STATEMENT" means any registration statement of the
Company relating to the registration for resale of Registrable Securities,
including any registration statement filed pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
(b) ACCOUNTING PRINCIPLES. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with the
generally accepted accounting principles in effect from time to time, to the
extent applicable, except where such principles are inconsistent with the
express requirements of this Agreement including without limitation the
definitions set out in Section 7.
(c) DIRECTLY OR INDIRECTLY. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether the action in question
is taken directly or indirectly by such Person.
8. MISCELLANEOUS.
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(a) REMEDIES. Each holder of the Registrable Securities, in
addition to being entitled to exercise all rights provided herein, and granted
by law, including recovery of damages, shall be entitled to specific performance
of its rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agrees to waive the defense
in any action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company shall not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to such holders of the
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's securities under any other agreements.
(c) 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 without the written consent of the Company and each of the
Investors.
(d) NOTICES. Any notices required or permitted to be given under
the terms of this Agreement shall be in writing and shall be sent by mail,
personal delivery, by telephone line facsimile transmission or courier and shall
be effective five (5) days after being placed in the mail, if mailed, or upon
receipt, if delivered personally, by telephone line facsimile transmission or by
courier, in each case addressed to a party at such party's address (or telephone
line facsimile transmission number) shown in the introductory paragraph or on
the signature page of this Agreement or such other address (or telephone and
facsimile transmission numbers) as a party shall have provided by notice to the
other parties in accordance with this provision. In the case of any notice to
the Company, such notice should be addressed to the Company at its address shown
in the introductory paragraph of this Agreement, Attention: Dr. Una S. Ryan,
Ph.D. (telephone and facsimile transmission numbers: (781) 433-3101, (781)
433-3191), and a copy shall also be given to: Goodwin, Procter & Hoar LLP,
Attention: Stuart Cable, P.C., (telephone and facsimile transmission numbers:
(617) 570-1322, (617) 523-1231), and in the case of any notice to the
Purchasers, a copy shall be given to: PaineWebber, Attention: Legal Department
(telephone and facsimile transmission numbers: Don Mittman, telephone: (212)
713- 4411, in each case with a copy to: Jeffrey Marcus, Morrison & Foerster LLP,
telephone: (212) 468-8137, facsimile: (212) 468-7900.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
Company and the Investors, including without limitation and without the need for
an express assignment, Affiliates of the Investors. The rights and obligations
of an Investor under this Agreement shall be automatically assigned by such
Investor to any transferee of all or any portion of such Investor's Registrable
Securities who is a Permitted Transferee (as defined below); provided, however,
that within a reasonable time after the transfer, (i) the Company is provided
notice of the transfer including the name and address of the transferee and the
number of Registrable Securities transferred; and (ii) that such transferee
agrees in writing to be bound by the terms of this Agreement. (For purposes
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of this "Agreement, a "Permitted Transferee" shall mean any Person who (a) is an
"accredited investor," as that term is defined in Rule 501(a) of Regulation D
and (b) is a transferee of the Registrable Securities as permitted under the
securities laws of the United States). Upon any transfer permitted by this
Section 8(e), the Company shall be obligated to such transferee to perform all
of its covenants under this Agreement as if such transferee were an Investor.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) GOVERNING LAW. THE CORPORATE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS SHALL GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE
RIGHTS AND OBLIGATIONS OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER ISSUES AND
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION
OF THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS,
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
(h) SEVERABILITY. Should any part of this Agreement for any reason
be declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in force and effect as
if this Agreement had been executed with the invalid portion thereof eliminated
and it is hereby declared the intention of the parties hereto that they would
have executed the remaining portion of this Agreement without including therein
any such part, parts, or portion which may, for any reason, be hereafter
declared invalid.
(i) CAPTIONS. The descriptive headings of the various Sections or
parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
(j) WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE INVESTORS
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
(k) EFFECTIVENESS OF AGREEMENT. This Agreement shall become
effective upon execution by the Company and delivery hereof by the Company to at
least one Investor and the execution by such Investor and delivery hereof by
such Investor to the Company, notwithstanding the fact that any other potential
Investors listed in Schedule I have not so executed and delivered this
Agreement.
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(l) FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written.
Avant Immunotherapeutics, Inc., a Delaware
corporation
By: /s/ Una S. Ryan
-------------------------------------
Name: Una S. Ryan
-------------------------------------
Title: President and CEO
-------------------------------------
[Signatures of Investors are contained in Schedule I]
15
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SCHEDULE I
INVESTORS
BAYSTAR CAPITAL L.P.
By: /s/ Steven Lamar
---------------------------------------
Name: Steven Lamar
Its Duly Authorized Signatory
BAYSTAR INTERNATIONAL
By: /s/ Steven Lamar
---------------------------------------
Name: Steven Lamar
Its Duly Authorized Signatory
CATALYST PARTNERS, L.P.
By: /s/ Alison Rosen
---------------------------------------
Name: Alison Rosen
Its Duly Authorized Signatory
CATALYST INTERNATIONAL, L.P.
By: /s/ Alison Rosen
---------------------------------------
Name: Alison Rosen
Its Duly Authorized Signatory
16
<PAGE>
CLARION CAPITAL CORPORATION
By: /s/ Morton Cohen
---------------------------------------
Name: Morton Cohen
Its Duly Authorized Signatory
CLARION PARTNERS, L.P
By: /s/ Morton Cohen
---------------------------------------
Name: Morton Cohen
Its Duly Authorized Signatory
CLARION OFFSHORE FUND LTD.
By: /s/ Morton Cohen
---------------------------------------
Name: Morton Cohen
Its Duly Authorized Signatory
+
DRESDNER RCM BIOTECHNOLOGY FUND
By: /s/ Anthony Ain
---------------------------------------
Name: Anthony Ain
Its Duly Authorized Signatory
FRAMLINGTON HEALTH FUND
By: /s/ Anthony Milford
---------------------------------------
Name: Anthony Milford
Its Duly Authorized Signatory
MUNDER FRAMLINGTON HEALTHCARE FUND
By: /s/ Anthony Milford
---------------------------------------
Name: Anthony Milford
Its Duly Authorized Signatory
17
<PAGE>
JALAA EQUITIES, LP
By: /s/ Jason Aryeh
---------------------------------------
Name: Jason Aryeh
Its Duly Authorized Signatory
HALIFAX FUND, L.P
By: /s/ Steven W. Weiner
---------------------------------------
Name: Steven W. Weiner
Its Duly Authorized Signatory
PICTET BIOTECH
By: /s/ Vincent Ossipow
---------------------------------------
Name: Vincent Ossipow
Its Duly Authorized Signatory
PICTET ASSET MANAGEMENT UK LTD.
For:
Pictet Biotech Fund (Genome)
By: /s/ Sam Perry
---------------------------------------
Name: Sam Perry
Its Duly Authorized Signatory
PETER SEARS
By: /s/ Peter Sears
---------------------------------------
Name: Peter Sears
18
<PAGE>
NARRAGANSETT I, LP
By: /s/ Joseph L. Dowling III
---------------------------------------
Name: Joseph L. Dowling III
Its Duly Authorized Signatory
NARRAGANSETT OFFSHORE, LTD.
By: /s/ Joseph L. Dowling III
---------------------------------------
Name: Joseph L. Dowling III
Its Duly Authorized Signatory
19
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REABOURNE LTD.
FINSBURY TECHNOLOGY TRUST
By: /s/ C.J. Edge
---------------------------------------
Name: C.J. Edge
Its Duly Authorized Signatory
CONSULTA TECHNOLOGY FUND
By: /s/ Barry Carroll
---------------------------------------
Name: Barry Carroll
Its Duly Authorized Signatory
PULSAR TECHNOLOGY FUND
By: /s/ Mr. Nitin Aggarwahl
---------------------------------------
Name: Mr. Nitin Aggarwahl
Its Duly Authorized Signatory
FGI BIOTECHNOLOGY FUND
By: /s/ Dr. Andrew Clark
---------------------------------------
Name: Dr. Andrew Clark
Its Duly Authorized Signatory
20
