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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): APRIL 17, 1998
TARGETED GENETICS CORPORATION
(Exact name of registrant as specified in charter)
WASHINGTON 0-23930 91-1549568
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1100 OLIVE WAY, SUITE 100
SEATTLE, WASHINGTON 98101
(Address of principal executive offices) (Zip Code)
(206) 623-7612
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
On April 17, 1998, Targeted Genetics Corporation (the "Company") sold and
issued 8,666,667 shares of common stock (the "Common Stock") to four
institutional investors. The Common Stock was issued and sold pursuant to the
provisions of Regulation D promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"). The
aggregate offering price of the Common Stock was $13,000,000, based on a per
share price of $1.50. In addition, for every two shares of Common Stock
purchased, each investor received one five-year warrant to purchase one share of
Common Stock for $2.00 (together with the Common Stock, the "Shares"). Pursuant
to an Investor Rights Agreement between the Company and the investors, the
Company is required by May 1, 1998, to file a registration statement on Form S-3
for the public resale of the Shares. The Investor Rights Agreement is attached
hereto as Exhibit 4.1 and the form of Common Stock Purchase Warrant is attached
hereto as Exhibit 4.2.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits.
EXHIBIT NO. DESCRIPTION
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4.1 Investor Rights Agreement dated as of April 17, 1998 among
Targeted Genetics Corporation and the investors.
4.2 Form of Common Stock Purchase Warrant between Targeted
Genetics Corporation and each of the investors.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned, hereunto duly authorized.
TARGETED GENETICS CORPORATION
By: /s/ James A. Johnson
---------------------------------
James A. Johnson
Chief Financial Officer
(Authorized Officer and Principal
Financial Officer)
Dated: April 27, 1998
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- ---------------------------------------------------------------
4.1 Investor Rights Agreement dated as of April 17, 1998 among
Targeted Genetics Corporation and the investors.
4.2 Form of Common Stock Purchase Warrant between Targeted Genetics
Corporation and each of the investors.
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EXHIBIT 4.1
TARGETED GENETICS CORPORATION
INVESTOR RIGHTS AGREEMENT
DATED
AS OF
APRIL 17, 1998
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<TABLE>
<CAPTION>
CONTENTS
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<S> <C>
1. Certain Definitions..................................... 1
2. First Shelf Registration................................ 2
3. Second Shelf Registration............................... 3
4. Additional Registration Rights.......................... 3
4.1 Demand Rights................................ 3
4.2 Piggyback Rights............................. 4
5. Expenses of Registration................................ 5
6. Obligations of the Company.............................. 5
7. Information by Investors................................ 6
8. Indemnification and Contribution........................ 6
9. Delay of Registration................................... 9
10. Assignment of Registration Rights....................... 9
11. "Market Stand-Off" Agreement............................ 9
12. Termination of Registration Rights...................... 10
13. Board Representation and Visitation Rights.............. 10
14. Information Rights...................................... 11
15. Notices................................................. 11
16. Amendments and Waivers.................................. 11
17. Severability............................................ 11
18. Entire Agreement; Governing Law......................... 12
19. Counterparts............................................ 12
</TABLE>
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INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT, dated as of April 17, 1998, by and among
TARGETED GENETICS CORPORATION, a Washington corporation (the "Company"), and the
parties listed on Schedule A hereto, as at any time amended (the "Investors").
RECITALS
A. Pursuant to a Common Stock and Warrant Purchase Agreement, dated as of
April 17, 1998 (the "Purchase Agreement"), the Company has agreed to issue and
sell shares of its common stock, par value $.01 per share (the "Common Stock"),
and warrants to purchase shares of its Common Stock to The Equitable Life
Assurance Society, GeneChem Technologies Venture Fund, L.P., International
Biotechnology Trust plc and SOFINOV Societe Financiere d'Innovation Inc.
(collectively, the "Initial Investors").
B. The execution of this Agreement by the parties hereto is a condition to
the obligation of each Investor to purchase the Common Stock and warrants.
C. The Company and the Investors desire to enter into this Agreement to
facilitate the purchase and sale of the Common Stock and warrants.
AGREEMENT
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms not otherwise defined in
this Agreement shall have the following respective meanings:
"Closing Date" shall mean the date of closing of the issuance and sale of
the Shares and Warrants from the Company to the Investors as provided in the
Purchase Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"First Shelf Period" shall mean the period commencing on the date of
effectiveness of the registration statement filed in accordance with Section 2
hereof and ending on the date two years from the Closing Date.
"The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement with the
Commission in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" shall mean the Shares and the Warrant Shares;
provided, however, that Shares or Warrant Shares shall cease to be treated as
Registrable Securities at such time as they (i) have been sold pursuant to an
effective registration statement under the
INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
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Securities Act or (ii) have otherwise been sold or transferred to or through a
broker, dealer or underwriter in a public distribution or a public securities
transaction.
"Registration Expenses" shall mean all expenses, except as stated in the
definition of Selling Expenses, incurred by the Company in complying with this
Agreement, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company and of one special counsel to the Investors per registration
statement, and blue sky fees and expenses.
"Second Shelf Period" shall mean the period commencing on the date two
years from the Closing Date and ending on the date seven years from the Closing
Date.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of the Registrable
Securities by the Investors.
"Shares" shall mean the shares of Common Stock to be issued and sold by the
Company to the Investors in accordance with the Purchase Agreement.
"Warrant Shares" shall mean the shares of Common Stock issuable upon
exercise of the Warrants.
"Warrants" shall mean the warrants to purchase shares of Common Stock to be
issued by the Company to the Investors in accordance with the Purchase
Agreement.
2. FIRST SHELF REGISTRATION
On or before the date 15 days after the Closing Date, the Company shall
file a registration statement with the Commission with respect to the
registration of all the Registrable Securities held by the Investors and shall
use its best efforts to have such registration statement declared effective
within 90 days of the Closing Date or as soon as practicable thereafter. After
the effective date of such registration statement, the Company shall use its
best efforts to maintain the registration effective for the period that ends
upon the earliest of (i) the expiration of the First Shelf Period, (ii) the time
at which all Shares and Warrant Shares (excluding any Shares or Warrant Shares
that cease to be Registrable Securities) have been sold or distributed pursuant
to such registration statement or (iii) the date after which all Shares and
Warrant Shares (excluding any Shares or Warrant Shares that cease to be
Registrable Securities) may be sold without registration in reliance on Rule
144(k) under the Securities Act (such period, the "First Selling Period").
Without intending in any manner to diminish the obligations of the Company under
Section 6(b), if at any time during the First Shelf Period the Company notifies
the Investors that there exists or may exist material nonpublic information
which must be disclosed in order for the registration statement not to be false
or misleading, then the Company may require that no sales may be made under the
registration statement until such time as disclosure is made or the Company
determines that disclosure is not necessary; provided, however, that the
aggregate period of time during which sales may not be made as a result of the
Company's exercise of the foregoing right shall
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INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
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not exceed 120 days during the First Shelf Period. The Company shall use its
best efforts to cause any required disclosure to be made as soon as practicable.
3. SECOND SHELF REGISTRATION
The Company will have the option, in its sole discretion, to extend the
effectiveness of the registration statement filed in accordance with Section 2
hereof, or to file a new registration statement with respect to all the
Registrable Securities held by Investors which shall be declared effective, for
a period that begins on the date two years from the Closing Date and ends on the
earliest of (i) the expiration of the Second Shelf Period, (ii) the time at
which all Registrable Securities have been sold or distributed pursuant to such
registration statement or (iii) the date after which all Registrable Securities
may be sold without registration in reliance on Rule 144(k) under the Securities
Act (such period, the "Second Selling Period"). Without intending in any manner
to diminish the obligations of the Company under Section 6(b), if at any time
during the Second Shelf Period the Company notifies the Investors that there
exists or may exist material nonpublic information which must be disclosed in
order for the registration statement not to be false or misleading, then the
Company may require that no sales may be made under the registration statement
until such time as disclosure is made or the Company determines that disclosure
is not necessary; provided, however, that the aggregate period of time during
which sales may not be made as a result of the Company's exercise of the
foregoing right shall not exceed 60 days in any calendar year. The Company
shall use its best efforts to cause any required disclosure to be made as soon
as practicable.
4. ADDITIONAL REGISTRATION RIGHTS
If, but only if, the Company fails or does not elect to maintain the
existing registration statement and the Company fails or does not elect to file
and maintain a new registration statement in accordance with and for the time
period described in Section 3 hereof, the Investors shall have the registration
rights provided in this Section 4; provided, however, that the Company will have
no obligation hereunder if the First Selling Period expires prior to the date
two years from the Closing Date.
4.1 DEMAND RIGHTS
If at any time during the Second Selling Period the Company receives from
any Investor a written request that the Company effect a registration with
respect to Registrable Securities owned by such Investor, the Company shall file
within 15 days of receipt of such request a registration statement covering the
Registrable Securities so requested to be registered and, as soon as
practicable, effect such registration so as to permit or facilitate the sale and
distribution of all or such portion of such Investor's Registrable Securities as
are specified in such request; provided, however, that the Company shall not be
obligated to effect any such registration pursuant to this Section 4.1 if (i)
the Investor proposes to sell Registrable Securities at an aggregate price to
the public (net of any underwriters' discounts or commissions) of less than
$500,000, (ii) the Company shall furnish to the
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INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
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Investor a certificate signed by the President of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such registration
to be effected at such time, in which event the Company will have the right to
defer the filing of the registration statement for a period of not more than 60
days after receipt of the request of the Investor under this Section 4.1
(provided that with respect to any individual Investor the Company shall not
exercise this right more than once in any calendar year), (iii) the Investor has
previously requested three such registrations pursuant to this Section 4.1 or
(iv) the Company has, within the 12-month period preceding the date of such
request, already effected one such registration for the Investor pursuant to
this Section 4.1. For the purposes of clauses (iii) and (iv) of the foregoing
proviso, each Initial Investor and all assignees of such Initial Investor's
registration rights under this Agreement shall be considered one Investor. The
Company shall use best efforts to cause any registration statement filed
pursuant to this Section 4.1 to remain effective for 180 days or such shorter
period of time as is required to effect the sale of all Registrable Securities
registered pursuant to such registration statement.
4.2 PIGGYBACK RIGHTS
(a) If (but without any obligation to do so) the Company proposes to
register any of its Common Stock under the Securities Act in connection with the
public offering of such stock solely for cash (other than a registration
relating solely to the sale of securities to participants in a Company stock
plan, or a registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), either for its own account or
for the account of Investors exercising demand registration rights pursuant to
Section 4.1 hereof, the Company shall, at each such time, promptly give each
Investor written notice of such registration. Upon the written request of an
Investor given within five days after mailing of such notice by the Company, the
Company shall, subject to the provisions of Section 4.2(b), use reasonable
efforts to cause to be registered under the Securities Act all of the
Registrable Securities that each such Investor has requested to be registered.
In the event that the Company decides for any reason not to complete the
registration of shares of Common Stock other than the Registrable Securities,
the Company shall have no obligation under this Section 4.2 to continue with the
registration of the Registrable Securities. Any request pursuant to this
Section 4.2(a) to register Registrable Securities as part of an underwritten
public offering of Common Stock shall specify that such Registrable Securities
are to be included in the underwriting on the same terms and conditions as the
shares of Common Stock otherwise being sold through underwriters under such
registration.
(b) The Company shall not be required under this Section 4.2 to include
any Investor's Registrable Securities in an underwritten offering of the
Company's securities unless such Investor accepts the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it. If the
underwriters advise the Company that marketing factors require a limitation on
the number of shares, including Registrable Securities, to be included in
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INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
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such offering, then the Company shall so advise all Investors of Registrable
Securities that would otherwise have been underwritten pursuant to this Section
4.2, and the number of shares, including Registrable Securities, that may be
included in the registration shall be apportioned first to the Company, then pro
rata among the selling Investors and any other selling shareholders according to
the total amount of Registrable Securities or other securities requested to be
sold in such registration by such selling shareholders (including the selling
Investors), or in such other proportions as shall mutually be agreed to by such
selling shareholders (including the selling Investors), provided that in no
event shall the amount of Registrable Securities be reduced if any securities
are to be included in such underwriting for the account of any person or entity
other than the Company.
5. EXPENSES OF REGISTRATION
All Registration Expenses shall be borne by the Company. All Selling
Expenses relating to Registrable Securities registered on behalf of each
Investor shall be borne by such Investor on the basis of the number of shares of
Common Stock registered and sold.
6. OBLIGATIONS OF THE COMPANY
Whenever required under Section 2, 3 or 4 hereof to effect the registration
of any Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use best efforts to cause such
registration statement to become and remain effective at the times and for the
periods provided in this Agreement.
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Investors such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of all securities covered by such registration
statement.
(d) Use reasonable efforts to register and qualify the securities covered
by such registration statement under such state securities or blue sky laws as
shall be reasonably requested by the Investors, 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.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Investor
participating in such registration shall also enter into and perform its
obligations under such an agreement.
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(f) Notify each Investor of Registrable Securities covered by such
registration statement, during the time when a prospectus relating thereto
covered by such 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 such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and, at the request
of any selling Investor, promptly furnish to all the selling Investors a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the selling
Investors, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made.
7. INFORMATION BY INVESTORS
Each Investor shall furnish to the Company such information regarding
itself, the Registrable Securities it holds and the distribution proposed by it
as the Company may reasonably request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
8. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification by the Company. Upon the registration of Registrable
Securities, the Company shall indemnify and hold harmless the Investors and each
underwriter, selling agent or other securities professional, if any, that
facilitates the disposition of such Shares, and each of their respective
officers and directors and each person who controls the Investors, underwriter,
selling agent or other securities professional within the meaning of Section 15
of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), against any losses, claims, damages or
liabilities, joint or several, to which the Investors or such other persons may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which the Registrable
Securities are to be registered under the Securities Act, or any prospectus
contained therein or furnished by the Company to the Investors or other such
person, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the Company hereby agrees to reimburse the Investors or other person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable to the
Investors or other person in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or prospectus, or amendment or supplement, in reliance
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upon and in conformity with written information furnished to the Company by the
Investors or such other person expressly for use therein.
(b) Indemnification by the Investors. Each Investor agrees, as a
consequence of the inclusion of the Investor in such registration, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of such Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign any registration statement with respect to the
Registrable Securities and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Company or such other persons may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such registration statement or
prospectus, or any amendment or supplement, 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, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Investor, underwriter, selling agent or other securities professional expressly
for use therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 8, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party under this Section 8 for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation, unless representation of such
indemnifying party and such indemnified party by the same counsel would be
inappropriate due to actual or potential conflicting interests between such
parties. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of
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which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 8
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 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 indemnifying party and the indemnified party in connection
with the statements or omissions 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 of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Investors or any underwriters, selling agents
or other securities professionals or all of them were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 8(d). 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 shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. 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 obligations of the Investors and any underwriters,
selling agents or other securities professionals in this Section 8(d) to
contribute shall be several in proportion to the number of shares of Common
Stock registered, underwritten, or sold as the case may be, by them and not
joint.
(e) Notwithstanding any other provision of this Section 8, in no event
will (i) any Investor be required to undertake liability to any person under
this Section 8 for any amounts in excess of the dollar amount of the proceeds to
be received by the Investor from the sale of the Investor's Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) pursuant to any registration statement under which such Registrable
Securities are to be registered under the Securities Act and (ii) any
underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such
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INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
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underwriter, selling agent or other securities professional with respect to the
Registrable Securities underwritten or sold by it.
(f) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have to the Investor,
underwriter, selling agent or other securities professional within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the
obligations of the Investor or other such person under this Section 8 shall be
in addition to any liability which the Investor or other person may otherwise
have to the Company, its directors, officers who sign any registration statement
with respect to the Registrable Securities and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act. The remedies provided in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
9. DELAY OF REGISTRATION
No Investor shall have any right to obtain or seek an injunction
restraining or otherwise delaying any registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities pursuant
to this Agreement may be assigned by an Investor to a transferee or assignee of
such securities who shall, upon such transfer or assignment, be deemed an
"Investor" under this Agreement; provided, however, that the Company is, within
a reasonable period of time after such transfer, furnished with written notice
of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned and such transferee
or assignee assumes the transferor's or assignor's obligations under this
Agreement; provided, further, that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act and that
such transferee or assignee is either (a) a partner or retired partner of any
Investor that is a partnership, (b) a member of the immediate family or a trust
for the benefit of any Investor that is an individual, (c) an entity
controlling, controlled by or under common control with any Investor that is not
an individual, or a limited partner, general partner or other affiliate of an
Investor, (d) a constituent member of any Investor that is a limited liability
company or (e) a transferee of at least 500,000 shares of Common Stock (as
adjusted for stock splits, stock dividends, stock consolidations and the like).
11. "MARKET STAND-OFF" AGREEMENT
The Investors hereby agree that they shall not, to the extent requested by
the Company and an underwriter of Common Stock (or other securities) of the
Company, sell or otherwise transfer or dispose (other than to donees who agree
to be similarly bound) of any Registrable Securities for 90 days following the
effective date of any registration statement
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filed under the Securities Act in connection with an underwritten public
offering for the account of the Company; provided, however, that all officers
and directors of the Company (whether or not pursuant to this Agreement) enter
into similar agreements; provided, further, that the foregoing provision shall
not limit an Investor's right to participate in such underwritten public
offering in accordance with Section 4.2 hereof.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of the
Investors (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
If as a result of the foregoing provisions of this Section 11 an Investor
is unable to sell any Registrable Securities proposed to be registered pursuant
to a registration statement previously filed in accordance with Section 4.1
hereof, such registration is terminated prior to the 60th day following the date
on which such previously filed registration statement initially became
effective, and such Investor is not permitted to sell such Registrable
Securities in the Company's underwritten public offering, then the registration
statement previously filed in accordance with Section 4.1 hereof shall not be
counted as a registration for the purposes of clauses (iii) and (iv) of Section
4.1 hereof.
12. TERMINATION OF REGISTRATION RIGHTS
The registration rights granted pursuant to this Agreement shall terminate
as to all Investors on the seventh anniversary of the Closing Date. In
addition, such rights shall terminate as to any Investor when all Registrable
Securities of such Investor have been sold or distributed or when all
Registrable Securities of such Investor may be sold without registration in
reliance on Rule 144(k) under the Securities Act.
13. BOARD REPRESENTATION AND VISITATION RIGHTS
(a) GeneChem Management Inc. and SOFINOV Societe Financiere d'Innovation
Inc. (together, the "Designating Investors") will have the right to designate
one representative to the Company's Board of Directors (such designee, the
"Investor Designee"); provided, however, that the Nominating Committee of the
Company's Board of Directors may select, in its sole discretion, an Investor
Designee if the Designating Investors are unable to agree upon such designee (i)
in the case of an Investor Designee to be elected at an annual meeting of the
Company's shareholders, by January 31 in the year of such meeting or (ii) in the
case of an Investor Designee to be appointed to fill a vacancy resulting from
the resignation, death or removal of the preceding Investor Designee, within 30
days following such resignation, death or removal. The Company shall use its
best efforts to nominate for election by its shareholders, to cause the election
of and thereafter to maintain in office the Investor Designee; provided,
however, that the foregoing shall not preclude the removal from the Board of
Directors of any Investor Designee to the extent required by applicable law or
the Company's charter or bylaws. The initial Investor Designee will be a
representative of
-10-
INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
<PAGE>
GeneChem Management Inc. and will be appointed to the Company's Board of
Directors following the Company's 1998 annual meeting of shareholders.
(b) Whichever of the Designating Investors does not have a representative
on the Company's Board of Directors will have the right to designate a
representative to attend all meetings of the Board of Directors in a nonvoting
observer capacity (provided that such representative executes a confidentiality
agreement reasonably satisfactory to the Company) and, in this respect, the
Company shall provide such representative with copies of all notices, minutes,
consents and other material that it provides to its directors for all the
meetings of the Board of Directors. Notwithstanding the foregoing, if the
Company's Board of Directors determines that the participation of such
representative as to any particular matter, whether due to a conflict of
interest, a disclosure of privileged information or otherwise, would be
detrimental to the best interests of the Company, then such representative shall
be excluded from receiving Board information or participating in the discussion
by the Board of Directors of such matter.
(c) The provisions of this Section 13 will terminate as to either
Designating Investor as of the date on which such Designating Investor (together
with any person controlling, controlled by or under common control with such
Designating Investor) no longer holds at least 1,000,000 shares of Common Stock
(as adjusted for stock splits, stock dividends, stock consolidations and the
like); such provisions shall not otherwise terminate.
14. INFORMATION RIGHTS
The Company will deliver to such Investor each annual and quarterly
financial statements and other public information as is reasonably requested by
such Investor.
15. NOTICES
Unless otherwise provided, any notice desired or required to be given
hereunder shall be in writing given by personal delivery or certified or
registered mail, or confirmed facsimile transmission, in any such case addressed
or sent: (a) if to the Company, to Targeted Genetics Corporation, 1100 Olive
Way, Suite 100, Seattle, WA 98101, Attn: President, Facsimile: (206) 223-0288,
with a copy to Perkins Coie, 1201 Third Avenue, 40th Floor, Seattle, WA 98101,
Attn: Stephen M. Graham, Facsimile: (206) 583-8500; (b) if to an Investor, to
the address or facsimile number listed on Exhibit A hereto, with a copy to
Lapointe Rosenstein, 1250 Rene-Levesque Blvd. W., Suite 1400, Montreal, Quebec
H3B 5E9, Attn: Perry Kliot, Facsimile: (514) 925-9001 and a copy to Reboul,
MacMurray, Hewitt, Maynard & Kristol, 45 Rockefeller Plaza, New York, NY 10111,
Attn: Charles Uniman; or (c) to such other address or facsimile number as any
party shall have previously designated by such a notice. The effective date of
any notice or request shall be three days from the date it is sent by the
addresser with charges prepaid so long as it is in fact received within five
days, or when successful transmission is confirmed if sent by facsimile, or when
personally delivered.
-11-
INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
<PAGE>
16. AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the holders of 75% of the Registrable Securities outstanding; provided any
adverse effect on any Investor affects all Investor equally.
17. SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
18. ENTIRE AGREEMENT; GOVERNING LAW
This Agreement constitutes the full and entire understanding and agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements with respect to the subject matter hereof. This Agreement
shall be governed by and construed under the laws of the State of Washington as
applied to agreements among Washington residents entered into and to be
performed entirely within the State of Washington.
19. COUNTERPARTS
This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed and delivered shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
[remainder of page intentionally left blank]
-12-
INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TARGETED GENETICS CORPORATION
By /s/ H. Stewart Parker
------------------------------------------------
H. Stewart Parker
President and Chief Executive Officer
INVESTORS:
THE EQUITABLE LIFE ASSURANCE SOCIETY
By /s/ Charles Duddridge
------------------------------------------------
Its Assistant General Manager
------------------------------------------------
GENECHEM TECHNOLOGIES VENTURE FUND L.P.
By /s/ Louis P. Lacasse
------------------------------------------------
Its
------------------------------------------------
INTERNATIONAL BIOTECHNOLOGY TRUST PLC
By /s/ Jeremy L. Curnock Cook
------------------------------------------------
Its Director
------------------------------------------------
SOFINOV SOCIETE FINANCIERE D'INNOVATION INC.
By /s/ Dennis Dionne
------------------------------------------------
Its President
------------------------------------------------
-13-
INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
<PAGE>
EXHIBIT A
SCHEDULE OF INVESTORS
<TABLE>
<CAPTION>
SHARES
SUBJECT TO
NAME, ADDRESS AND FACSIMILE NUMBER SHARES WARRANTS
---------------------------------- --------- ----------
<S> <C> <C>
The Equitable Life Assurance Society 2,000,000 1,000,000
City Place House
55 Basinghall Street
London EC2V 5DR
ENGLAND
Fax: (171) 796-4824
GeneChem Technologies Venture Fund L.P. 2,000,000 1,000,000
Suite 920
1001 De Maisonneuve Blvd. West
Montreal, Quebec H3A 3C8
CANADA
Fax: (514) 849-5191
International Biotechnology Trust plc 2,000,000 1,000,000
N.M. Rothschild Asset Management, Ltd.
Five Arrows House
St. Swithin's Lane
London EC4N 8NR
ENGLAND
Fax: (171) 623-6261
SOFINOV Societe Financiere d'Innovation Inc. 2,666,667 1,333,333
1981 Avenue McGill College
Montreal, Quebec H3A 3C7
CANADA
Fax: (514) 847-2628
</TABLE>
INVESTOR RIGHTS AGREEMENT TARGETED GENETICS CORPORATION
<PAGE>
EXHIBIT 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND LAWS.
TARGETED GENETICS CORPORATION
COMMON STOCK PURCHASE WARRANT
This certifies that for value received, _____________________, or
registered assigns, is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time on or after the date hereof (subject to the
provisions of Section 1) and at or prior to 11:59 p.m., Pacific time, on April
17, 2003 (the "Expiration Time"), but not thereafter, to acquire from TARGETED
GENETICS CORPORATION, a Washington corporation (the "Company"), in whole or from
time to time in part, up to a maximum of ______ fully paid and nonassessable
shares of Common Stock ("Warrant Shares") at a purchase price per share (the
"Exercise Price") of $2.00. Such number of shares, type of security and
Exercise Price are subject to adjustment as provided herein, and all references
to "Warrant Shares" and "Exercise Price" herein shall be deemed to include any
such adjustment.
1. EXERCISE OF WARRANT
Subject to the termination provisions of Section 9 hereof, the purchase
rights represented by this Warrant are exercisable by the registered holder
hereof, in whole or in part, at any time and from time to time at or prior to
the Expiration Time by the surrender of this Warrant and the Notice of Exercise
form attached hereto duly executed to the office of the Company at 1100 Olive
Way, Suite 100, Seattle, Washington 98101 (or such other office or agency of the
Company as it may designate by notice in writing to the registered holder hereof
at the address of such holder appearing on the books of the Company), and upon
payment of the Exercise Price for the shares thereby purchased (by cash or by
check or bank draft payable to the order of the Company or by cancellation of
indebtedness of the Company to the holder hereof, if any, at the time of
exercise in an amount equal to the purchase price of the shares thereby
purchased); whereupon the holder of this Warrant shall be entitled to receive
from the Company a stock certificate in proper form representing the number of
Warrant Shares so purchased.
<PAGE>
2. SECURITIES ACT COMPLIANCE
As a condition of its delivery of the certificates for the Warrant Shares,
the Company may require the registered holder hereof (or the transferee, if any,
of the Warrant Shares in whose name the Warrant Shares are to be registered) to
deliver to the Company, in writing, representations regarding the purchaser's
sophistication, investment intent, acquisition for its own account and such
other matters as are reasonable and customary for purchasers of securities in an
unregistered private offering and the Company may place conspicuously upon each
certificate representing Warrant Shares a legend substantially in the following
form, the terms of which are agreed to by the registered holder hereof
(including any transferee of this Warrant or the Warrant Shares):
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE SECURITIES LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (I) THERE IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES,
(II) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER
OF THESE SECURITIES REASONABLY SATISFACTORY TO THIS CORPORATION STATING
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (III) THIS
CORPORATION OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION.
3. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder shall be delivered to the
holder hereof within a reasonable time after the date on which this Warrant
shall have been exercised in accordance with the terms hereof. The Company
agrees that the shares so issued shall be, and be deemed to be, issued to such
holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been exercised in accordance with the
terms hereof. No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant. With respect to any fraction
of a share called for upon the exercise of this Warrant, the Company shall pay
in cash or check to the holder of this Warrant an amount equal to such fraction
multiplied by the difference between (a) the closing sale price, as of the date
immediately preceding the date of exercise of this Warrant, of one share of the
Company's Common Stock as reported on the Nasdaq Stock Market and (b) the
Exercise Price.
4. CHARGES, TAXES AND EXPENSES
Issuance of certificates for Warrant Shares upon the exercise of this
Warrant shall be made without charge to the holder hereof for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be
2
<PAGE>
paid by the Company, and such certificates shall be issued in the name of the
holder of this Warrant or in such name or names as may be directed by the holder
of this Warrant; provided, however, that in the event certificates for Warrant
Shares are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof.
5. NO RIGHTS AS SHAREHOLDER
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company prior to the exercise hereof.
6. EXCHANGE AND REGISTRY OF WARRANT
This Warrant is exchangeable, upon the surrender hereof by the registered
holder at the above-mentioned office or agency of the Company, for a new Warrant
of like tenor and dated as of such exchange. The Company shall maintain at the
above-mentioned office or agency a registry showing the name and address of the
registered holder of this Warrant. This Warrant may be surrendered for
exchange, transfer or exercise, in accordance with its terms and subject to
compliance with applicable laws, at such office or agency of the Company, and
the Company shall be entitled to rely in all respects, prior to written notice
to the contrary, upon such registry.
7. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) upon receipt of indemnity or security reasonably
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will make and deliver a new warrant of
like tenor and dated as of such cancellation, in lieu of this Warrant.
8. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday or a Sunday or shall
be a legal holiday, then such action may be taken or such right may be exercised
on the next succeeding day that is not a legal holiday.
9. MERGER, SALE OF ASSETS, ETC.
If at any time the Company merges or consolidates with or into any other
corporation, effects any reorganization, or sells or conveys all or
substantially all of its assets to any other entity, in a transaction in which
the shareholders of the Company immediately before the transaction own
immediately after the transaction less than a majority of the outstanding voting
securities of the entity (or its parent) succeeding to the business of the
Company (each
3
<PAGE>
such transaction, a "corporate transaction"), then this Warrant shall thereafter
entitle the holder to acquire such number and kind of securities as would have
been issuable in respect of the Warrant Shares (or other securities which were
subject to the purchase rights under this Warrant immediately prior to such
corporate transaction) as a result of such corporate transaction if this Warrant
had been exercised in full for cash immediately prior to such corporate
transaction. The Exercise Price hereunder shall be adjusted if and to the extent
necessary to reflect such change. In addition, appropriate adjustment (as
determined in good faith by the Company's Board of Directors) shall be made in
the application of the provisions of this Warrant with respect to the rights and
interest of the holder of this Warrant after the corporate transaction to the
end that the provisions of this Warrant shall be applicable after such corporate
transaction, as near as reasonably may be.
10. RECLASSIFICATION, CONVERSION, ETC.
If the Company at any time shall, by reclassification of securities or
otherwise, change the Warrant Shares into the same or a different number of
securities of any class or classes, this Warrant shall thereafter entitle the
holder to acquire such number and kind of securities as would have been issuable
in respect of the Warrant Shares (or other securities which were subject to the
purchase rights under this Warrant immediately prior to such reclassification or
other change) as a result of such change if this Warrant had been exercised in
full for cash immediately prior to such change. The Exercise Price hereunder
shall be adjusted if and to the extent necessary to reflect such change. If the
Warrant Shares or other securities issuable upon exercise hereof are subdivided
or combined into a greater or smaller number of shares of such security, the
number of shares issuable hereunder shall be proportionately increased or
decreased, as the case may be, and the Exercise Price shall be proportionately
decreased or increased, as the case may be, in both cases according to the ratio
which the total number of shares of such security to be outstanding immediately
after such event bears to the total number of shares of such security
outstanding immediately prior to such event. The Company shall give the holder
prompt written notice of any change in the type of securities issuable
hereunder, any adjustment of the Exercise Price for the securities issuable
hereunder, and any increase or decrease in the number of shares issuable
hereunder.
11. REGISTRATION RIGHTS
The Warrant Shares issuable upon exercise or conversion of this Warrant
shall be entitled to the registration rights set forth in that certain Investor
Rights Agreement, dated as of April 17, 1998, between the Company and the
parties listed on Schedule A thereto.
12. REPRESENTATIONS AND WARRANTIES
The Company hereby represents, warrants and covenants to the holder hereof
that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued Common Stock a sufficient number of
shares to provide for the issuance of Warrant Shares upon the exercise of this
Warrant;
4
<PAGE>
(b) the issuance of this Warrant shall constitute full authority to
the Company's officers who are charged with the duty of executing stock
certificates to execute and issue, or cause to be issued, the necessary
certificates for the Warrant Shares issuable upon exercise of this Warrant;
(c) the Company has all requisite legal and corporate power to execute
and deliver this Warrant, to sell and issue the Warrant Shares hereunder and
perform its obligations under the terms of this Warrant; and
(d) the Warrant Shares, when issued in compliance with the provisions
of this Warrant and the Company's Restated Articles of Incorporation and Amended
and Restated Bylaws, will be validly issued, fully paid and nonassessable, and
free of any liens or encumbrances (other than liens or encumbrances created by
or imposed upon the holder of the Warrant Shares), and will be issued in
compliance with all applicable federal and state securities laws.
14. COOPERATION
The Company will not, by amendment of its Restated Articles of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such reasonable action as may be necessary or
appropriate in order to protect the rights of the holder of the Warrant against
material impairment.
15. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the laws
of the state of Washington.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer.
Dated: April 17, 1998
TARGETED GENETICS CORPORATION
By ___________________________
Title ________________________
ACCEPTED: April 17, 1998
_________________________________
[Name of Holder]
5
<PAGE>
NOTICE OF EXERCISE
To: Targeted Genetics Corporation
(1) The undersigned hereby elects to purchase __________ shares of Common
Stock of Targeted Genetics Corporation pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
________________________________
(Name)
________________________________
(Address)
(3) The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares.
_________________________________ ____________________________________
(Date) (Signature)
6
<PAGE>
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
________________________________________________________________________________
(Please Print)
whose address is _______________________________________________________________
(Please Print)
Dated: _____________________________________________________
Holder's Signature: ________________________________________
Holder's Address: __________________________________________
____________________________________________________________
Guaranteed Signature: __________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
7
