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EXHIBIT 10.2
COR THERAPEUTICS, INC.
5.00% CONVERTIBLE SUBORDINATED NOTES DUE MARCH 1, 2007
REGISTRATION RIGHTS AGREEMENT
February 24, 2000
Goldman, Sachs & Co.,
Chase H&Q, A Division of Chase Securities Inc.,
CIBC World Markets Corp.,
FleetBoston Robertson Stephens Inc.,
Warburg Dillon Read LLC,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
COR Therapeutics, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to you (the "Purchasers") upon the terms set forth in a
purchase agreement dated February 17, 2000 (the "Purchase Agreement"), between
the Purchasers and the Company, its 5.00% Convertible Subordinated Notes due
March 1, 2007 (the "Securities"). As an inducement to the Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees with the
Purchasers, (i) for the benefit of the Purchasers and (ii) for the benefit of
the Holders (as defined below) from time to time of the Registrable Securities
(as defined below), including the Purchasers, as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Purchase Agreement or the Offering
Circular, each dated February 17, 2000, in respect of the Securities. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" or "Securities Act" means the United States Securities Act of
1933, as amended.
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"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, "control"
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Closing Date" means the First Time of Delivery as defined in the
Purchase Agreement.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.0001 per share, of
the Company, and any securities of the Company or any successor which may be
issuable upon conversion of the Securities pursuant to Article Eleven of the
Indenture.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b) hereof.
"Electing Holder" means any Holder of Registrable Securities that has
returned a properly completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(b) hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
"Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of February 24, 2000, between
the Company and Firstar Bank, N.A., as Trustee, as amended and supplemented from
time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"Person" means an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities.
"Registrable Security" means any Security and any share of Common Stock
issuable upon conversion or repurchase thereof except any such Security or share
of Common Stock which (i) has been effectively registered under the Securities
Act and sold in a manner contemplated by the Shelf
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Registration Statement, (ii) has been transferred in compliance with Rule 144
under the Securities Act (or any successor provision thereto) or is transferable
pursuant to paragraph (k) of such Rule 144 (or any successor provision thereto)
("Rule 144(k)"), or (iii) has otherwise been transferred and a new Security or
share of Common Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in accordance with Section
3.5(b) of the Indenture.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration.
(a) The Company shall, no later than 90 calendar days following the
Closing Date, file with the Commission a Shelf Registration Statement relating
to the offer and sale of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement and, thereafter, shall use its
reasonable efforts to cause such Shelf Registration Statement to be declared
effective under the Act within 180 calendar days following the Closing Date;
provided, however, that the Company may, upon written notice to all the Holders,
postpone having the Shelf Registration Statement declared effective for a
reasonable period not to exceed 90 days if the Company possesses material
non-public information, the disclosure of which would have a material adverse
effect on the Company and its subsidiaries taken as a whole; provided, further,
however, that no Holder shall be entitled to have the Registrable Securities
held by it covered by such Shelf Registration unless such Holder is an Electing
Holder.
(b) The Company shall use its reasonable efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by Holders until the earliest of (1) the sale of all Registrable
Securities registered under the Shelf Registration Statement; (2) the
expiration of the period referred to in Rule 144(k) with respect to all
Registrable Securities held by Persons that are not Affiliates of the
Company; and (3) two years from the date (the "Effective Date") such
Shelf Registration Statement is declared effective (such period being
called the "Effectiveness Period"); and
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(ii) After the Shelf Registration Statement is declared effective
by the Commission, upon the request of an Electing Holder, to take
action reasonably necessary to register the sale of any Registrable
Securities of such Electing Holder and to identify such Electing Holder
as a selling securityholder.
The Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless such action is required by applicable law
and the Company thereafter promptly complies with the requirements of paragraph
3(k) below.
(c) The Company may suspend the use of the Prospectus for a period not
to exceed 45 days in any 90-day period or an aggregate of 90 days in any 365-day
period if the Board of Directors of the Company shall have determined in good
faith that because of valid business reasons (not including avoidance of the
Company's obligations hereunder), including the acquisition or divestiture of
assets, pending corporate developments and similar events, it is in the best
interests of the Company to suspend such use, and prior to suspending such use
the Company provides the Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
(d) Without limiting the remedies available to the Electing Holders
under Section 7 hereof, the Company acknowledges that any failure by the Company
to comply with its obligations under Section 2(a) hereof may result in material
irreparable injury to the Purchasers or the Electing Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the
Purchasers or any Electing Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall prepare and file with the Commission the Shelf
Registration Statement on the appropriate form under the Act (x) which form
shall be selected by the Company, (y) which form shall be available for the sale
of the Registrable Securities by the Electing Holders and (z) which Shelf
Registration Statement and any amendment thereto and the Prospectus forming part
thereof and any amendment or supplement thereto (and each other document
incorporated therein by reference in each case) shall comply as to form in all
material respects with the Act and the Exchange Act and the respective rules and
regulations thereunder and shall include (or incorporate by reference) all
financial statements required by the Commission to be filed therewith, and shall
use its reasonable efforts to cause such Shelf Registration Statement to become
effective and remain effective in accordance with Section 2 hereof.
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(b) (1) The Company shall mail the Notice and Questionnaire to the
Holders of Registrable Securities not less than 30 calendar days prior
to the time the Company intends in good faith to have the Shelf
Registration Statement declared effective. Any Person that acquires any
Registrable Securities from an Electing Holder in compliance with the
applicable provisions of the Securities (excluding any Registrable
Securities that were not identified in the Notice and Questionnaire
delivered by such Electing Holder) will be entitled to have such
Registrable Securities included in the Shelf Registration Statement so
long as such transferee provides the Company with an updated Notice and
Questionnaire prior to the Questionnaire Deadline (as defined below).
Subject to Section 3(b)(2) hereof, no Holder of Registrable Securities
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Date, and no Holder of
Registrable Securities shall be entitled to use the Prospectus forming a
part thereof for offers and resales of Registrable Securities at any
time, unless such Holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein (the "Questionnaire Deadline"), such response deadline to be on
a date not less than 30 calendar days after the date of mailing of the
Notice and Questionnaire by the Company.
(2) After the Effective Date of the Shelf Registration Statement,
the Company shall, upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, as promptly as
reasonably practicable, send a Notice and Questionnaire to such Holder.
The Company shall not be required to take any action to name such Holder
as a selling securityholder in the Shelf Registration Statement until
such Holder has returned a completed and signed Notice and Questionnaire
to the Company. Following its receipt of such Notice and Questionnaire,
the Company will reasonably promptly include the Registrable Securities
covered thereby in the Shelf Registration Statement (if not previously
included).
(3) If such complete Notice and Questionnaire is received by the
Company before 10 days prior to the Effective Date, such Holder shall be
entitled to have its Registrable Securities included in the Shelf
Registration Statement at the Effective Date. If the Company receives
such complete Notice and Questionnaire after the 10th day prior to the
Effective Date, the Registrable Securities covered by the Notice and
Questionnaire will be included in the Shelf Registration Statement as
promptly as reasonably practicable after receipt of such Notice and
Questionnaire.
(4) In the event that the Company receives such complete Notice
and Questionnaire after the Shelf Registration Statement has been
declared effective, the Company will, as promptly as reasonably
practicable following receipt of the complete Notice and Questionnaire,
file any amendments to the Shelf Registration Statement or supplements
related to the Prospectus as are necessary to permit such Holder to
deliver the Prospectus to purchasers of the Registrable Securities. The
Company shall use reasonable efforts to cause such post-effective
amendment to the Shelf Registration Statement to be declared effective
within 45 days of the filing of such post-effective amendment. The
Company may take reasonable steps to aggregate the addition of
Registrable Securities of more than one
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Holder for purposes of filing amendments to the Shelf Registration
Statement or supplements to the Prospectus so as to reduce the need for
multiple amendments or supplements, but the Company shall not utilize
this provision to delay any filing requested by any of the Purchasers.
(c) The Company shall furnish to the Holders, prior to the filing
thereof with the Commission, a copy of any Shelf Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use reasonable efforts to reflect in each
such document, when so filed with the Commission, such comments as the Holders
reasonably may propose.
(d) The Company shall take such action as may be necessary so that (i)
any Shelf Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto (and each report or
other document incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under which they were
made, not misleading.
(e) (i) The Company shall advise the Purchasers, the Electing Holders
and the Managing Underwriter or Underwriters promptly and, if requested
by the Purchasers or any Electing Holder, confirm such advice in
writing:
(1) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective in each case making a public announcement thereof
by release made to Reuters Economic Services and Bloomberg
Business News;
(2) when the Company receives any request by the Commission
for amendments or supplements to the Shelf Registration Statement
or the Prospectus included therein or for additional information;
(3) when the Commission issues any stop order suspending
effectiveness of the Shelf Registration Statement or initiates any
proceedings for that purpose;
(4) when the Company receives any notification with respect
to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
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(ii) The Company shall, as promptly as reasonably practicable,
advise the Purchasers, the Electing Holders and each Managing
Underwriter, if any, of the happening of any event that requires the
making of any changes to the Shelf Registration Statement or the
Prospectus so that, as of such date, the Shelf Registration Statement
and the Prospectus do not contain an untrue statement of a material fact
and do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been
made).
(f) The Company shall use reasonable efforts to prevent the issuance,
and if issued to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible time.
(g) The Company shall furnish to each Electing Holder, counsel for the
Purchasers, each Purchaser and each Managing Underwriter, if any, with respect
to a Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Electing Holder so requests in
writing, all exhibits (including those incorporated by reference).
(h) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder and each Managing Underwriter, if any, with respect to a Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Electing Holder may
reasonably request; and the Company consents (except during the continuance of
any event described in Section 3(e)(ii)) to the use of the Prospectus or any
amendment or supplement thereto by each of the Electing Holders in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus and any amendment or supplement thereto during the Effectiveness
Period.
(i) Prior to any offering of Registrable Securities pursuant to any
Shelf Registration Statement, the Company shall register or qualify or cooperate
with the Purchasers and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Electing Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such Shelf Registration Statement; provided,
however, that in no event shall the Company be obligated to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this Section 3(i), (ii)
file any general consent to service of process or taxation in any jurisdiction
where it is not as of the date hereof then so subject or (iii) subject itself to
taxation in any jurisdiction if it is not so subject.
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(j) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to any Shelf Registration Statement free of any restrictive
legends and in such permitted denominations and registered in such names as
Electing Holders may request in connection with the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph 3(e)(ii)
above, the Company shall promptly prepare a post-effective amendment to any
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Registrable Securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
notifies the Electing Holders of the occurrence of any event contemplated by
paragraph 3(e)(ii) above, the Electing Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.
(l) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the Securities
registered under such Shelf Registration Statement.
(m) The Company shall use reasonable efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to their security holders or otherwise provide in accordance with
Section 11(a) of the Securities Act as soon as practicable after the effective
date of the applicable Shelf Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act.
(n) The Company shall cause the Indenture and the Securities to be
qualified under the Trust Indenture Act in a timely manner; and in connection
with such qualification, the Company shall cooperate with the Trustee under the
Indenture and the Holders (as defined in the Indenture) to effect such changes
to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company shall
execute and use all reasonable efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such Indenture to
be so qualified in a timely manner.
(o) In the event of an underwritten offering as set forth in Section 6
herein, the Company shall, if requested, promptly include or incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriter or Underwriters
reasonably request to be included therein and to which the Company does not
reasonably object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after it is
notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
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(p) The Company shall enter into such customary agreements (including
underwriting agreements in customary form) to take all other appropriate actions
in order to expedite or facilitate the registration or the disposition of the
Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in Section 5 (or such
other provisions and procedures acceptable to the Managing Underwriters, if any)
with respect to all parties to be indemnified pursuant to Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by one or more
representative of the Electing Holders designated in writing by the
Holders of a majority of the Registrable Securities to be registered
thereunder, any Underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any attorney, accountant or other
agent retained by such representative or any such Underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to make
reasonably available for inspection all relevant information reasonably
requested by such representative or any such Underwriter, attorney,
accountant or agent in connection with any such Shelf Registration
Statement, in each case, as is customary for similar due diligence
examinations; provided, however, that any information that is designated
in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such
representative, any Holders or any such Underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Electing
Holders and the Underwriters, if any, in form, substance and scope as
are customarily made by the Company to underwriters in primary
underwritten offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement;
(iv) use its reasonable efforts to obtain opinions of counsel to
the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each Electing Holder and the
Underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Electing Holders and Underwriters
(it being agreed that the matters to be covered by such opinion or
written statement by such counsel delivered in connection with such
opinions shall include in customary form, without limitation, as of the
date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an untrue
statement of a
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material fact or the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading);
(v) use its reasonable efforts to obtain "cold comfort" letters
and updates thereof from the independent public accountants of the
Company (and, if necessary, any other independent public accountants of
any subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement), addressed to each
Electing Holder and the Underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings;
(vi) deliver such documents and certificates as may be reasonably
requested by any such Electing Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 3(d) and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(p) shall be performed at each closing under any
underwritten offering to the extent required thereunder (including at
any closing relating to the exercise by underwriters of their
over-allotment options, if any).
(r) The Company will use its reasonable efforts to cause the Stock
issuable upon conversion of the Securities to be admitted for quotation on the
Nasdaq National Market or other stock exchange or trading system on which the
Stock primarily trades on or prior to the effective date of any Shelf
Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the Exchange
Act shall be an "Affiliate" (as defined in Rule 2720(b)(i) of the Rules of
Conduct of the National Association of Securities Dealers, Inc. (the "NASD") (or
any successor or analogous provision thereto)) of the Company or has a "Conflict
of Interest" (as defined in Rule 2720(b)(7) of the Rules of Conduct of the NASD
(or any successor an analogous provision thereto)) and such broker-dealer shall
underwrite, participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of such rule) of any
Registrable Securities, whether as a holder of such Registrable Securities or as
an underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer (at the expense of such
broker-dealer) in complying with the requirements of such rule, including,
without limitation, by (A) engaging a "qualified independent underwriter" (as
defined in such rule) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual standards
of due diligence in respect thereto and to recommend the public offering price
of such Registrable Securities, (B) indemnifying such qualified independent
underwriter to the extent of the indemnification of Underwriters provided in
Section 5 hereof, and (C) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the requirements
of the Rules of Conduct of the NASD.
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(t) The Company shall use reasonable efforts to take all other steps
necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
(u) The Company may require each Electing Holder with respect to a Shelf
Registration Statement to furnish to the Company such information regarding the
Electing Holder and the distribution of Registrable Securities held by such
Electing Holder as may be required by applicable law or regulation for inclusion
in such Shelf Registration Statement and the Company may exclude from such
registration the Registrable Securities of any Electing Holder that fails to
furnish such information within a reasonable time after receiving such request.
4. Registration Expenses. Except as otherwise provided in Section 6, the
Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2 and 3 hereof and shall bear or
reimburse the Electing Holders for the reasonable fees and disbursements of a
single counsel selected by a plurality of all Electing Holders who own an
aggregate of not less than 25% of the Registrable Securities covered by the
Shelf Registration Statement to act as counsel therefor in connection therewith.
Each Electing Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Electing
Holder's Registrable Securities pursuant to the Shelf Registration Statement.
5. Indemnification and Contribution.
(a) In connection with any Shelf Registration Statement, the Company
shall indemnify and hold harmless each Electing Holder, each Underwriter who
participates in an offering of Registrable Securities, each person, if any, who
controls any of such parties within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and each of their respective directors,
officers, employees, trustees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, including any amounts paid in settlement of any
investigation, litigation, proceeding or claim, joint or several, as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration
Statement (or any amendment thereto) covering Registrable Securities,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, that the Company shall not be liable under
this clause (i) for any settlement of any action effected without its
written consent, which consent shall not be unreasonably withheld; and
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(ii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by the
Electing Holders, such Electing Holder or any Underwriter (except to the
extent otherwise expressly provided in Section 5(c) hereof)), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) of this Section 5(a);
provided that this indemnity shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Electing Holder or any
Underwriter in writing expressly for use in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto). Any amounts advanced by the Company to an indemnified party pursuant
to this Section 5 as a result of such losses shall be returned to the Company if
it shall be finally determined by such a court in a judgment not subject to
appeal or final review that such indemnified party was not entitled to
indemnification by the Company.
(b) Each Electing Holder shall agree, severally and not jointly, to
indemnify and hold harmless the Company, each Underwriter who participates in an
offering of Registrable Securities and the other Electing Holders and each of
their respective directors, officers (including each officer of the Company who
signed the Shelf Registration Statement), employees, trustees and agents and
each Person, if any, who controls the Company, any Underwriter or any other
Electing Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 5(a)(i) and (ii) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Electing Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto); provided, however, that, no
such Electing Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Electing Holder from the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers served on such indemnified
party, but failure to so notify an indemnifying party shall not relieve it of
any liability which it may have to the indemnified party otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. If an indemnifying party so
elects within a reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying party, may assume the defense of such
action with counsel chosen by it and approved by the indemnified party or
parties defendant in such action, provided that if any such indemnified party
reasonably
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determines that there may be legal defenses available to such indemnified party
which are different from or in addition to those available to such indemnifying
party or that representation of such indemnifying party and any indemnified
party by the same counsel would present a conflict of interest, then such
indemnifying party or parties shall not be entitled to assume such defense. If
an indemnifying party is not entitled to assume the defense of such action as a
result of the proviso to the preceding sentence, counsel for such indemnifying
party shall be entitled to conduct the defense of such indemnifying party and
counsel for each indemnified party or parties shall be entitled to conduct the
defense of such indemnified party or parties. If an indemnifying party assumes
the defense of an action in accordance with and as permitted by the provisions
of this paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying party or parties
be liable for the fees and expenses of more than one counsel (in addition to any
local counsel) separate from its own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision provided for in this Section 5 is
for any reason held to be unavailable to an indemnified party although
applicable in accordance with its terms, then each indemnifying party shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by such indemnified
party, as incurred; provided that 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 that was not guilty of such
fraudulent misrepresentation. Each such indemnifying party shall contribute to
such aggregate losses, liabilities, claims, damages and expenses of such
indemnified party of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault of an
indemnifying party, on the one hand, and of an indemnified party, 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 or alleged
omission to state a material fact relates to information supplied by such
indemnifying party, on the one hand, or by or on behalf of such indemnified
party, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Purchasers and the Holders of the Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this Section
5(d) were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 5(d), each director, officer,
employee, trustee, agent and Person, if any, who controls a Purchaser or Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Purchaser or
Holder, as the case may be, and each director, officer, employee, trustee and
agent of the Company, and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to
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contribution as the Company. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its written
consent, which consent shall not be unreasonably withheld.
(e) The Company may require, as a condition to including any Registrable
Securities in any Registration Statement filed and to entering into any
underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each Underwriter named in any such underwriting
agreement, severally and not jointly, to comply with the provisions of
paragraphs (a) through (d) of this Section 5.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Managing Underwriters, if any, any Electing Holder or any Person controlling
any Electing Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company and (iii) any sale of
Registrable Securities pursuant to the Shelf Registration Statement.
6. Underwritten Offering. The Electing Holders who desire to do so may
sell Registrable Securities in an underwritten offering upon request to the
Company. In any such underwritten offering, the investment banker or bankers and
manager or managers that will administer the offering will be selected by, and
the underwriting arrangements with respect thereto will be approved by the
Holders of a majority of the Registrable Securities to be included in such
offering; provided, however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company and
(ii) the Company shall not be obligated to arrange for more than one
underwritten offering during the Effectiveness Period. No Holder may participate
in any underwritten offering contemplated hereby unless such Holder (a) agrees
to sell such Holder's Registrable Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements and (c) at least 20% of the outstanding Registrable
Securities are included in such underwritten offering. The Holders participating
in any underwritten offering shall be responsible for any expenses customarily
borne by selling securityholders, including underwriting discounts and
commissions and fees and expenses of counsel to the selling securityholders and
shall reimburse the Company for the fees and disbursements of their counsel,
their independent public accountants and any printing expenses incurred in
connection with such underwritten offerings. Notwithstanding the foregoing or
the provisions of Section 3(o) hereof, upon receipt of a request from the
Managing Underwriter or a representative of Holders of a majority of the
Registrable Securities outstanding to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection with
an underwritten offering, the Company may delay the filing of any such amendment
or supplement for up to 90 days if the Company in good faith has a valid
business reason for such delay.
7. Liquidated Damages
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(a) Pursuant to Section 2(a) hereof, the Company may, upon written
notice to all the Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 90 days if the Company
possesses material non-public information, the disclosure of which would have a
material adverse effect on the Company and its subsidiaries taken as a whole.
Notwithstanding any such postponement, if (i) on or prior to the 90th day
following the Closing Date, a Shelf Registration Statement has not been filed
with the Commission or (ii) on or prior to the 180th day following the Closing
Date, such Shelf Registration Statement is not declared effective by the
Commission (each, a "Registration Default"), the Company shall be required to
pay liquidated damages ("Liquidated Damages"), from and including the day
following such Registration Default until such Shelf Registration Statement is
either so filed or so filed and subsequently declared effective, as applicable,
or, if earlier, the end of the Effectiveness Period, at a rate per annum equal
to an additional one-quarter of one percent (0.25%) of the principal amount of
Registrable Securities, to and including the 90th day following such
Registration Default and one-half of one percent (0.5%) thereof from and after
the 91st day following such Registration Default.
(b) In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company from effecting sales pursuant thereto) (an "Effective
Failure") for more than 45 days, whether or not consecutive, in any 90-day
period, or 90 days, whether or not consecutive, during any 12-month period, then
the Company shall pay Liquidated Damages at a rate per annum equal to an
additional one-half of one percent (0.5%) from the 46th day of the applicable
90-day period or the 91st day of the applicable 12-month period, as the case may
be, that such Shelf Registration Statement ceases to be effective (or the
Holders of Registrable Securities are otherwise prevented or restricted by the
Company from effecting sales pursuant thereto) until the earlier of (i) the time
the Shelf Registration Statement again becomes effective or the Holders of
Registrable Securities are again able to make sales under the Shelf Registration
Statement or (2) the time the Effectiveness Period expires. For the purpose of
determining an Effective Failure, days on which the Company has been obligated
to pay Liquidated Damages in accordance with the foregoing in respect of a prior
Effective Failure within the applicable 90-day or 12-month period, as the case
may be, shall not be included.
(c) In the event the Company fails to file a post-effective amendment to
the Shelf Registration Statement, or the post-effective amendment is not
declared effective, within the periods required by Section 3(b)(4), the Company
shall pay Liquidated Damages at a rate per annum equal to an additional one-half
of one percent (0.5%) from and including the date of such Registration Default
until such time as such Registration Default is cured.
(d) Any amounts to be paid as Liquidated Damages pursuant to paragraphs
(a), (b) or (c) of this Section shall be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date (as defined in
the Indenture), as applicable, following the date of such Registration Default.
Such Liquidated Damages will accrue (1) in respect of the Securities at the
rates set forth in paragraphs (a), (b) or (c) of this Section, as applicable, on
the principal amount of the Securities and (2) in respect of the Common Stock
issued upon conversion of the Securities,
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at the rates set forth in paragraphs (a), (b) or (c) of this Section, as
applicable, applied to the Conversion Price (as defined in the Indenture) at
that time.
(e) Except as provided in Section 2(d), the Liquidated Damages as set
forth in this Section 7 shall be the exclusive monetary remedy available to the
Holders of Registrable Securities for such Registration Default or Effective
Failure. In no event shall the Company be required to pay Liquidated Damages in
excess of the applicable maximum amount of one-half of one percent (0.5%) set
forth above, regardless of whether one or multiple Registration Defaults exist.
8. Miscellaneous.
(a) Other Registration Rights. The Company may have granted and may in
the future grant registration rights that would permit any Person that is a
third party the right to piggy-back on any Shelf Registration Statement,
provided that if the Managing Underwriter, if any, of such offering notifies the
Electing Holders that the total amount of securities which they and the holders
of such piggy-back rights intend to include in any Shelf Registration Statement
is so large as to materially adversely affect the success of such offering
(including the price at which such securities can be sold), then only the
amount, the number or kind of securities to be offered for the account of
holders of such piggy-back rights will be reduced to the extent necessary to
reduce the total amount of securities to be included in such offering to the
amount, number or kind recommended by the Managing Underwriter prior to any
reduction in the amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
Goldman, Sachs & Co.
(c) No Inconsistent Agreements. The Company has not entered into, and on
or after the date of this Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of 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 other
issued and outstanding securities under any such agreements.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(d);
(2) if to the Purchasers, initially at the address set forth in
the Purchase Agreement; and
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(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when
received.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Registrable Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Registrable Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(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) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
COR THERAPEUTICS, INC.
By: /s/ PETER S. RODDY
------------------------------------
Name: Peter S. Roddy
Title: Vice President, Finance
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
Goldman, Sachs & Co.,
Chase H&Q, A Division of Chase Securities Inc.,
CIBC World Markets Corp.,
FleetBoston Robertson Stephens Inc.,
Warburg Dillon Read LLC,
By: /s/ GOLDMAN, SACHS & CO.
-----------------------------------
(Goldman, Sachs & Co.)
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Appendix A
COR THERAPEUTICS, INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the COR Therapeutics, Inc.
(the "Company") 5.00% Convertible Subordinated Notes due March 1, 2007 (the
"Notes") are held. The Notes are identified by CUSIP No. 217753AA0.
In accordance with the terms of the Registration Rights Agreement, dated
as of February 17, 2000, between the Company and the Purchasers named therein
(the "Registration Rights Agreement"), the Company is in the process of
registering the Notes and the shares of common stock, par value $.0001 per share
(together, the "Securities"), issuable upon conversion thereof, under the
Securities Act of 1933, as amended, for resale by the beneficial owners thereof.
In order to have their Securities included in the registration statement, the
beneficial owners, INCLUDING BENEFICIAL OWNERS RESIDENT OUTSIDE THE UNITED
STATES, must complete and return the enclosed Notice of Registration Statement
and Selling Securityholder Questionnaire (the "Notice and Questionnaire").
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact:
COR Therapeutics, Inc.
256 East Grand Avenue
South San Francisco, California 94080
Attention: Corporate Counsel
Telephone: (650) 246-7315
Fax: (650) 244-9208.
A-1
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NOTICE OF REGISTRATION STATEMENT
AND SELLING SECURITYHOLDER QUESTIONNAIRE
A-2
21
COR Therapeutics, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
COR Therapeutics, Inc. (the "Company") has filed or intends shortly to
file with the United States Securities and Exchange Commission (the
"Commission") a preliminary registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under the United States
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
5.00% Convertible Subordinated Notes due March 1, 2007 (CUSIP No. 21753AA0) (the
"Notes"), and Common Stock issuable upon conversion thereof, in accordance with
the terms of the Registration Rights Agreement, dated as of February 24, 2000
(the "Registration Rights Agreement"), between the Company and the purchasers
named therein (the "Purchasers"). A copy of the Registration Rights Agreement
has been sent to each of the Purchasers. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration
Rights Agreement.
In order to have Registrable Securities included in the Shelf
Registration Statement (or a supplement or amendment thereto), this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company at the
address set forth herein for receipt ON OR BEFORE [insert date that is 30 days
from the Notice date] (the "Questionnaire Deadline"). Unless the Company
otherwise consents, beneficial owners of the Registrable Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement (or
a supplement or amendment thereto) and related Prospectus and (ii) may not sell
their Registrable Securities pursuant thereto. Beneficial owners of Registrable
Securities not who have returned a Notice and Questionnaire by the Questionnaire
Deadline may, however, receive another Notice and Questionnaire from the Company
upon request. Following its receipt of a completed and signed Notice and
Questionnaire, the Company will include the Registrable Securities covered
thereby in the Shelf Registration Statement subject to restrictions on the
timing and number of supplements to the Shelf Registration Statement provided in
the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Notes issued under the Trust
Indenture and the Common Stock issuable upon
A-3
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conversion of such Notes, provided, however, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Note or Common Stock issuable upon conversion thereof
except any such Note or Common Stock which (i) has been registered pursuant to
an effective registration statement under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
Rule 144 (or any successor provision thereto) or (iii) has otherwise been
transferred and a new Note or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3)
(unless otherwise specified under Item 3). The undersigned, by signing and
returning this Notice and Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement, including, without
limitation, Section 5 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and the Trustee the Notice of Transfer (completed and signed) set
forth in Exhibit 1 attached to this Notice and Questionnaire and hereby
undertakes to do so.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-4
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QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
------------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) Below:
------------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
(3) Below are Held:
------------------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
Telephone:
--------------------------------------------------------------
Fax:
--------------------------------------------------------------------
Contact:
----------------------------------------------------------------
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below, the undesigned Selling Securityholder does
not beneficially own any Notes or Common Stock previously issued upon
conversion, repurchase or redemption of any Note.
Principal amount of Notes beneficially owned:
--------------------------
Number of shares of Common Stock beneficially owned and issued to date
upon conversion, repurchase or redemption of Notes (if any):
------------
Principal amount of Notes which the undersigned wishes to be included in
the Shelf Registration Statement:
---------------------------------------
Number of shares of Common Stock (if any) issued upon conversion,
repurchase or redemption of Registrable Securities which are to be
included in the Shelf Registration Statement:
A-5
24
------------------------------------------------------------------------
(4) Other shares of Common Stock or other Notes of the Company owned by the
Selling Securityholder:
-------------------------------------------------
Except as set forth below, and under item (3) above, the undersigned
Selling Securityholder is not the beneficial or registered owner of any
shares of Common Stock or any other securities of the Company.
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, director or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be sold
from time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchanges or U.S.
inter-dealer quotation system of a registered national securities
association on which the Registrable Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholders may also sell Registrable Securities
short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
A-6
25
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and Exchange Act
and the respective rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
A-7
26
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and related
Prospectus.
In accordance with the Selling Securityholder's obligation under
the Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing by hand delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
To the Company:
COR Therapeutics, Inc.
256 East Grand Avenue
South San Francisco, California 94080
Attention: General Counsel
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
--------------------------------------------------------
-----------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
A-8
27
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY AT:
COR Therapeutics, Inc.
256 East Grand Avenue
South San Francisco, California 94080
Attention: General Counsel
A-9
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EXHIBIT 1
to Appendix A
NOTICE TO TRANSFER PURSUANT TO REGISTRATION STATEMENT
Firstar Bank, N.A.
101 E. 5th Street
12th Floor Corporate Trust
St. Paul, MN 55101
COR Therapeutics, Inc.
256 East Grand Avenue
South San Francisco, California 94080
Attention: General Counsel
Re: 5.00% Convertible Subordinated Notes
due March 1, 2007 (the "Notes")
Dear Sirs:
Please be advised that has transferred $
aggregate principal amount of the above-referenced Notes or shares of the
Company's Common Stock, issued on conversion, repurchase or redemption of Notes,
pursuant to the Registration Statement Form S-3 (File No. 333- ) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Notes
or Common Stock is named as a selling securityholder in the Prospectus dated or
in amendments or supplements thereto, and that the aggregate principal amount of
the Notes or number of Common Stock transferred are [a portion of] the Notes or
Common Stock listed in such Prospectus as amended or supplemented opposite such
owner's name.
A-10
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Dated: Very truly yours,
------------------------------
------------------------------------
(Name)
By:
---------------------------------
(Authorized Signature)
A-11