1
EXHIBIT 10.29
REGISTRATION RIGHTS AGREEMENT
Agreement dated as of April 19, 1995, between CIBA-GEIGY LIMITED of
Klybeckstrasse 141, 4002 Basel Switzerland (the "Holder") and ONCOGENE SCIENCE,
INC. of 106 Charles Lindbergh Boulevard, Uniondale, New York 11553-3649, USA
(the "Company")
WHEREAS, Holder is a holder of the common stock, par value $.01 per share, of
the Company ("Common Stock");
WHEREAS, Holder desires to have certain registration rights under the
securities laws, and the Company desires that Holder have such registration
rights;
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
other good and valuable consideration, the parties hereby agree as follows:
1. At such time as the Company shall determine to file any
registration statement, or any post-effective amendment to a registration
statement, under the Securities Act of 1933 (the "Act"), covering equity
securities of the Company (other than registration statements on Form S-8 or
S-4 or any other form not generally available for the registration of
securities for sale to the public) for its own account or for the account of
others, the Company shall advise Holder, by written notice at least 14 business
days prior to any filing, and shall, upon the request of the Holder, and at the
expense of the Company, include in any such
2
registration statement, or any such post-effective amendment to a registration
statement, all of the Registrable Securities (as hereinafter defined) that
Holder has requested in writing to be registered, provided that such written
request is delivered to the Company within 10 business days of the Holder's
receipt of notice from the Company. As used in this Agreement, Registrable
Securities shall mean (i) the Common Stock purchased or owned by the Holder,
and (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any convertible security, options, warrant right or
other security which is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of such Common Stock. All
costs and expenses of such registration statement shall be borne by the
Company, except underwriting discounts or commissions applicable to any of the
Registrable Securities sold by the Holder. The Company shall not be required
to register securities of the Holder on more than two occasions; provided that
if the Holder has been prevented from selling all of the Common Stock it wished
to sell because of limitations imposed under paragraph (c) of this Section 1,
then the Holder shall be entitled to include such Common Stock in one or more
additional registration statements under the terms of this Section 1 until the
Holder has been able to sell all of the Common Stock it wished to sell.
(a) The Company shall supply prospectuses and such other
documents as Holder may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities, use its best efforts
to register and qualify any of the Registrable Securities for sale in such
reasonable number of states as Holder designates and do any and all other acts
and things which may be necessary or desirable to enable Holder to
-2-
3
consummate the public sale or other disposition of the Registrable Securities
subject to the rights of others with similar rights. The Company agrees to
maintain such registration statement or post-effective amendment with respect
to the Registrable Securities current under the Act as to the Registrable
Securities for a period of at least six months, and an additional three months
upon written request of Holder.
(b) The Company shall also furnish indemnification in the manner
provided in Section 2 hereof, except that the maximum amount of such
indemnification shall be limited to the net amount of proceeds received by
Holder from the sale of the Registrable Securities. Holder shall furnish
information and indemnification as set forth in Section 2 hereof, except that
the maximum amount which may be recovered from Holder shall be limited to the
net amount of proceeds received by Holder from the sale of the Registrable
Securities.
(c) In connection with any offering involving an underwriting of
shares of the Company's Common Stock, the Company shall not be required under
Section 1 hereof to include any of the Holder's securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it (or by other persons entitled to
select the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible
-3-
4
with the success of the offering, then the Company shall be required to include
in the offering only that number of such securities, including Registrable
Securities, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata, subject to prior existing rights, among the selling
stockholders according to the total amount of securities entitled to be
included therein owned by each selling stockholder or in such other proportions
as shall mutually be agreed to by such selling stockholders).
2. (a) Whenever pursuant to Section 1, a registration statement
relating to any of the Registrable Securities is filed under the Act, amended
or supplemented, the Company shall, to the extent permitted by law, indemnify
and hold harmless Holder, and each person, if any, who controls (within the
meaning of the Act) Holder, and each underwriter (within the meaning of the
Act) of such securities and each person, if any, who controls (within the
meaning of the Act) any such underwriter, against such losses, claims, damages,
liabilities or actions, joint or several, to which Holder, any such controlling
person or any such underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions in respect
thereof, arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any such registration statement or
any preliminary prospectus or final prospectus constituting a part thereof or
any amendment or supplement thereto, or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
Holder and each such controlling person and
-4-
5
underwriter for any legal or other expenses reasonably incurred by Holder or
such controlling person or underwriter in connection with investigating or
defending any such losses, claims, damages, liabilities or actions; provided,
however, that the Company will not be liable in any such case to the extent
that any such losses, claims, damages, liabilities or actions arise out of or
are based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in said registration statement, said preliminary
prospectus, said final prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished by Holder or any
other underwriter, for use in the preparation thereof.
(b) Holder shall indemnify and hold harmless the Company, each of
its directors, each of its officers and each person, if any, who controls the
Company within the meaning of the Act against any losses, claims, damages,
liabilities or actions, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any untrue or alleged untrue statement of any preliminary prospectus, said
final prospectus, or said amendment or supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement 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 said registration statement, said preliminary prospectus, said final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished by Holder for use in the preparation
thereof; and shall reimburse the
-5-
6
Company or any such director, officer or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such losses, claims, damages, liabilities or actions.
(c) Promptly after receipt by an indemnified party under this
Section 2 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party, give the indemnifying party notice of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 2.
(d) In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party, the indemnifying party shall not be liable to such
indemnified party under this Section 2 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable costs of investigation.
(e) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
-6-
7
contribution with respect to any amounts for which it would otherwise be liable
under this Section 2 to the extent permitted by law, provided that (i) no
contribution shall be made under circumstances where the indemnifying party
would not have been liable for indemnification under the fault standards set
forth in this Section 2, (ii) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any seller of Registrable Securities who
was not guilty of such fraudulent misrepresentation and (iii) contribution by
Holder shall be limited in amount to the net amount of proceeds received by him
from the sale of the Registrable Securities.
3. The provisions of Section 12. of the Agreement between the Company
and the Holder dated the date hereof shall be applicable to this agreement as
if fully set forth herein.
-7-
8
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
ONCOGENE SCIENCE, INC.
By:
-------------------------------
Title:
----------------------------
CIBA-GEIGY LIMITED
By:
------------------------------- -----------------------------
Title:
---------------------------- -----------------------------
-8-