Exhibit 10.7
REGISTRATION RIGHTS AGREEMENT, dated June 30, 1998, between PHARMACEUTICAL
RESOURCES, INC., a New Jersey corporation (the "Company"), Lipha Americas, Inc.,
a Delaware corporation ("Lipha") Merck KGaA, a Kommanditgesellschaft auf Aktien
organized under the laws of Germany ("Merck"), and Genpharm, Inc., a corporation
organized and existing under the laws of the Province of Ontario, Canada
("Genpharm", together with Merck and Lipha, the "Holders" and each a "Holder").
WHEREAS, Lipha concurrently herewith is purchasing 10,400,000 shares of
common stock, par value $.01 per share, of the Company ("Common Stock") pursuant
to a Stock Purchase Agreement, dated March 25, 1998, between the Company and the
Holder (the "Stock Purchase Agreement");
WHEREAS, Lipha concurrently herewith is purchasing 2,313,000 shares of
Common Stock owned by Clal Pharmaceutical Industries Ltd., pursuant to the Clal
Stock Purchase Agreement (as such term is defined in the Stock Purchase
Agreement);
WHEREAS, the Holders may purchase an aggregate of up to an additional
1,171,040 shares of Common Stock upon exercise of the separate Options (as such
term is defined in the Stock Purchase Agreement); and
WHEREAS, the Stock Purchase Agreement provides that the execution and
delivery of this Agreement is a condition precedent to the respective
obligations of the Company and Lipha to consummate the transactions contemplated
by such Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth herein, the parties hereto agree as follows:
SECTION 1. DEMAND REGISTRATIONS.
1.1 The Company agrees that, commencing on the date nine (9) months from
the date hereof, upon receiving a written request (the "Request") from any
Holder to register under the Securities Act of 1933, as amended (the "Securities
Act"), and under the securities laws of a reasonable number of states specified
by the Holder in the Request (the "Specified States"), a specified number of
shares of Subject Stock (as hereinafter defined), which number may be all or a
material part of the Subject Stock then owned by the Holders, the Company shall,
as soon thereafter as practicable, file with the Securities and Exchange
Commission (the "Commission") on the appropriate form a registration statement,
together with any requisite registration statements or applications under the
securities laws of the Specified States, covering the number of shares of
Subject Stock specified in the Request. The Company, under no circumstances,
shall be required to make more than three effective filings of a registration
statement under this Section 1; provided, however, that beginning at such time,
if ever, as any Holder shall exercise the Options, in whole or in material part,
the Company shall be obligated to effect two additional registrations pursuant
to this Section 1 following any Holder's delivery of a Request; provided,
further, that the Holders may not deliver more than one Request in total during
any 12-month period. For the purpose of the preceding sentence, Requests
delivered at the same time by the Holders together shall be counted as one
Request. The Company may, in its sole discretion, include additional issued or
unissued shares of Common Stock in such registration statement; provided, that
the inclusion of any such shares shall not reduce the number of shares of
Subject Stock contained in the Request which are covered by such registration
statement.
1.2 The term "Subject Stock", as used herein, shall mean the number of
shares of Common Stock owned by the Holders which shall have been purchased by
any Holder (a) under the Stock Purchase Agreement at the Closing (as such term
is defined therein), (b) under the Clal Stock Purchase Agreement or (c) upon any
exercise of the Options. "Registration statement" means all registration
statements, including all prospectuses contained therein and all amendments or
supplements thereto, or any related applications filed under the Securities Act
or under the securities laws of the applicable states.
1.3 The Company shall use its best efforts to cause a registration
statement including the shares of Subject Stock to become effective under the
Securities Act and, if necessary, under the securities laws of the Specified
States. The Company shall further use its best efforts to maintain the
effectiveness of such registration statement for such period as may be
reasonably necessary to complete the distribution of the Subject Stock covered
thereby, subject to the limitations set forth in Sections 3 and 4 hereof.
1.4 If the method of disposition requested by a Holder pursuant to this
Section 1 shall be an underwritten public offering, such Holder shall have the
right to designate the underwriter of such offering. Any underwriter selected by
such Holder shall be subject to the approval of the Company, which approval
shall not be unreasonably withheld (the "Underwriter"). The Company will join
the Holders in entering into an underwriting agreement and related agreements
with the Underwriter, which shall be in form and substance reasonably
satisfactory to the Company and its counsel and shall contain terms and
provisions customarily contained in the underwriting agreements utilized by such
Underwriter in connection with comparable public offerings, including an
indemnification of the Underwriter by the Company and the Holders.
1.5 All expenses, disbursements, fees (filing fees and others), legal and
accounting expenses, and other costs of every kind and nature incurred or borne
by the Company and the Holders in connection with a registration requested under
this Section 1 (both under the Securities Act and under the securities laws of
the Specified States) shall be paid and/or reimbursed by the Holders; provided,
however, that if the Company shall include any shares of Common Stock in any
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such registration, then the Company shall reimburse the Holders, within 10 days
following the Holders' written request, for all such expenses, disbursements,
fees and other costs using the ratio of net cash received by the Company and any
other sellers of shares of Common Stock under such registration statement to the
total amount of net cash received by the Holders unless the Holders shall have
otherwise agreed to bear such expenses, disbursements, fees and other costs on
behalf of any other stockholder of the Holders for whom shares of Common Stock
are being included in such registration.
SECTION 2. PIGGYBACK REGISTRATIONS.
2.1 The Company agrees that, on each occasion that it shall propose to file
a registration statement covering shares of Common Stock, whether on its own
behalf or at the request of any other stockholder of the Company (other than a
registration statement on Form S-4 or Form S-8 under the Securities Act), with
the Commission or under the laws of any state jurisdiction, the Company shall
give written notice ("Piggyback Notice") of such proposed filing to the Holders
at least 40 days prior to such filing. Upon the written request of any Holder,
given within 10 days after the date of the Piggyback Notice, the Company shall
use its best efforts to include in any such filing such number of shares of
Subject Stock that shall be requested by the Holders, subject to any limitations
as to the number of shares of Subject Stock that may be imposed by the Company's
underwriter (if any); provided, however, that if such registration statement is
being filed at the request of another stockholder of the Company, then the
maximum number of shares of Subject Stock included in such registration shall be
equal to the lesser of (a) the aggregate number of shares of the Common Stock to
be included in such registration multiplied by a fraction, the numerator of
which shall be the number of shares of Common Stock owned by the Holders on the
date of the Piggyback Notice and the denominator of which shall be the aggregate
number of shares of Common Stock that are issued and outstanding on such date,
or (b) the number of shares of the Common Stock that the Holders shall have
requested to have included in such registration.
2.2 The Company agrees that it shall use its best efforts to cause the
registration statement including the shares of Subject Stock to become effective
under the Securities Act and under the securities laws of Specified States. The
Company shall further use its best efforts to maintain the effectiveness of such
registration statement for such period as may be reasonably necessary to
complete the distribution of the Subject Stock covered thereby, subject to the
limitations set forth in Section 4 hereof.
2.3 The Holders shall pay all fees and expenses of its counsel and
accountants who shall not also be representing the Company, and shall reimburse
the Company for certain additional expenses incurred by the Company as set forth
in this Section 2.3. The Company shall pay all expenses, disbursements, fees
(filing and others), legal and accounting and other costs of every kind and
nature incurred or borne by the Company in connection with such a registration
requested under this Section 2 (both under the Securities Act and under the laws
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of the Specified States in which shares of the Subject Stock are being sold),
except that the Holders shall promptly reimburse the Company for all such
expenses, disbursements, fees and other costs using the ratio of net cash
received by the Holders to the total amount of net cash received by the Company
and any other sellers of shares of Common Stock under such registration
statement unless the Company shall have otherwise agreed to bear such expenses,
disbursements, fees and other costs on behalf of any other stockholder of the
Company for whom shares of Common Stock are being included in such registration.
SECTION 3. HOLDBACK AGREEMENT; LIMITATION ON RESALES. If the Company at any
time shall register shares of Common Stock under the Securities Act for sale to
the public, neither Holder shall sell publicly, make any short sale of, or grant
any option for the purchase of, or otherwise dispose publicly of, any of the
shares of Subject Stock (other than Subject Stock included in a registration
statement pursuant to Sections 1 or 2 hereof), without the prior written consent
of the Company, for a period designated by the Company in writing to the
Holders, which period shall begin not more than ten (10) days prior to the
effectiveness of the registration statement pursuant to which such public
offering shall be made and shall terminate at such time as similar restrictions
imposed by law and/or Company policy on directors and executive officers of the
Company generally shall terminate; provided, however, that, in no event, shall
such restrictions last more than 180 days after the effective date of such
registration statement.
SECTION 4. PREPARATION AND FILING. Whenever the Company shall be under an
obligation pursuant to this Agreement to use its best efforts to effect the
registration of the shares of Subject Stock, the Company and the Holders agree
as follows:
(a) The Company shall, in no event, be required to keep such
registration effective for longer than nine months after the effective date
thereof or during any period in which the trading of any shares of Common
Stock shall be suspended for any reason by the Commission.
(b) The Company shall use its best efforts to cause all shares of
Subject Stock registered pursuant to Sections 1 or 2 hereof to be listed
for trading on each securities exchange or other securities market on which
the Common Stock shall then be listed.
(c) The Company may require each Holder to promptly furnish in writing
to the Company such information regarding such Holder, the distribution of
the shares of Subject Stock as the Company may from time to time reasonably
request and such other information as may be legally required in connection
with such registration.
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(d) The Company shall supply the Holders with such number of copies of
registration statements, and amendments and supplements thereto, and any
prospectus relating thereto as may be reasonably requested by the Holders,
and will supply the Holders with copies of any preliminary and final
prospectus filed in connection therewith that may be reasonably required
and, if necessary, with copies of a prospectus meeting the requirements of
Section 10(a)(3) of the Securities Act; provided, however, that no such
prospectus need be supplied more than nine months after the effective date
of any such registration statement.
(e) The Company shall not be required in connection with any
qualification of the shares of Subject Stock to be sold within any state
jurisdiction to qualify to do business as a foreign corporation in any
state, to execute a general consent to service of process or to subject
itself to taxation, registration as a broker-dealer or to any unreasonable
regulatory requirements or unreasonable expenses, but shall execute and
deliver consents to service of process in the Specified States as to
matters relating to the sale of the shares of Subject Stock in such States.
(f) The Company shall promptly notify the Holders of any stop order
issued or threatened by the Commission or any state regulatory authority
with respect to any registration statement covering the shares of Subject
Stock and shall take all reasonable actions required to prevent the entry
of such stop order or to remove it if entered.
(g) Each of the Company and each Holder shall promptly notify the
other party of the occurrence of any event which shall require the filing
of an amendment or supplement to any registration statement and prospectus
covering the shares of Subject Stock. Upon receipt of such notice, each
party shall refrain from the sale of any shares of Subject Stock pursuant
to such registration statement and prospectus until the receipt by such
party of copies of the supplemented or amended registration statement and
prospectus.
SECTION 5. INFORMATION. Each Holder agrees that, promptly upon the request
of the Company, it shall furnish to the Company such information regarding
itself and its Affiliates, as such term is defined in Rule 12b-2 of the
Securities Exchange Act of 1934 (the "Exchange Act"), and its holdings of shares
of the Subject Stock as the Company shall specify in such request and as shall
be required in connection with any registration statement, proxy or other
reporting requirements of the Company. Each Holder further agrees to cooperate
with the Company in any way reasonably necessary to accomplish any such
registration hereunder and, when participating in any such registration, to
comply with all of the requirements of the Securities Act and the securities
laws of the states in which the shares of Subject Stock are being sold,
including delivery by the Holder to any purchaser of the shares of Subject Stock
of a copy of any required prospectus. Notwithstanding anything herein to the
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contrary, each Holder further agrees that it shall indemnify the Company and
hold it harmless from and against, and pay or reimburse it for, any liability,
loss, cost or damage, including attorneys' fees, incurred by the Company as a
result of any failure on such Holder's part to carry out the foregoing
agreement.
SECTION 6. INDEMNIFICATION.
6.1 INDEMNITORS; INDEMNIFIED PERSONS. For purposes of this Section 6, each
party which, pursuant to this Section 6, agrees to indemnify any other person or
entity shall be referred to, as applicable, as the "Indemnitor" with respect to
such person or entity, and each such person or entity who is indemnified shall
be referred to as the "Indemnified Person" with respect to such Indemnitor.
6.2 COMPANY INDEMNITY. The Company hereby agrees to indemnify and hold
harmless each Holder, and their respective directors, officers, employees,
agents and controlling persons (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act), from and against any and
all claims, liabilities, losses, damages and expenses (including reasonable
attorneys' fees and disbursements) asserted against or incurred by any such
Indemnified Person which shall be caused by any untrue statement of a material
fact contained in any registration statement or prospectus relating to the
Subject Stock, including any amendment or supplement thereto, or shall be caused
by any omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities and expenses shall be caused by any
untrue statement or omission based upon information furnished in writing to the
Company by such Holder or on such Holder's behalf for use therein.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6.2 shall not inure to the benefit of any
Indemnified Person from whom a person or entity asserting a claim purchased
shares if an untrue statement or omission of material fact in any prospectus
shall have been corrected by the Company on a timely basis, such person or
entity shall have failed to utilize such corrected prospectus and such corrected
prospectus would have cured the defect giving rise to such claim.
6.3 HOLDER INDEMNITY. Each Holder hereby agrees to indemnify and hold
harmless each of the Company, and its directors, officers, employees, agents and
controlling persons (within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act), from and against any and all claims,
liabilities, losses, damages and expenses (including reasonable attorneys' fees
and disbursements) asserted against or incurred by any such Indemnified Person
to the same extent as the foregoing indemnity from the Company to the Holders,
but only with respect to information relating to such Holder furnished in
writing by such Holder or on such Holder's behalf for use in any registration
statement or prospectus relating to the Subject Stock or any amendment or
supplement thereto. The total amount payable by such Holder pursuant to this
Section 6.3 shall not exceed an amount equal to the number of shares proposed to
be sold by such Holder in the registered offering that shall give rise to any
such claim for indemnity multiplied by the selling price per share.
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6.4 Defense. Promptly after receipt by an Indemnified Person of notice of
any claim or demand or the commencement of any action or proceeding with respect
to which indemnification may be sought hereunder, such Indemnified Person shall
notify the Indemnitor of such claim or demand or the commencement of such action
or proceeding, but failure so to notify the Indemnitor shall not relieve the
Indemnitor from any liability which the Indemnitor may have hereunder or
otherwise, unless the Indemnitor shall be actually prejudiced by such failure.
If the Indemnitor shall so elect, the Indemnitor shall assume the defense of
such claim, demand, action or proceeding, including the employment of counsel
reasonably satisfactory to such Indemnified Person, and shall pay the fees and
disbursements of such counsel. In the event, however, that such Indemnified
Person shall reasonably determine that having common counsel would present such
counsel with a conflict of interest or alternative defenses shall be available
to an Indemnified Person or if the Indemnitor shall fail to assume the defense
of the claim, demand, action or proceeding in a timely manner, then such
Indemnified Person may employ separate counsel to represent or defend such
Person against any such claim, demand, action or proceeding and the Indemnitor
shall pay the reasonable fees and disbursements of such counsel; provided,
however, that the Indemnitor shall not be required to pay the fees and
disbursements of more than one separate counsel for all Indemnified Persons in
any jurisdiction in any single or related action or proceeding. For any claim,
demand, action or proceeding the defense of which the Indemnitor shall assume,
the Indemnified Person shall have the right to participate therein and to retain
its own counsel at such Indemnified Person's own expense (except as otherwise
specifically provided in this Section 6.4), so long as such participation shall
not interfere with the Indemnitor's control of such claim, demand, action or
proceeding. The Indemnitor shall not, without the prior written consent of the
Indemnified Person, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder unless such settlement, compromise
or consent shall include an unconditional release of such Indemnified Person
from all liability arising out of such claim, demand, action or proceeding.
6.5 Contribution. If the indemnification in this Section 6 shall be held by
a court of competent jurisdiction to be unavailable to an Indemnified Person
with respect to any claim, liability, loss, damage or expense referred to
herein, then the Indemnitor shall contribute to the amounts paid or payable by
such Indemnified Person as a result of such claim, liability, loss, damage or
expense in such proportion as is appropriate to reflect the relative benefits
and also the relative fault of the Indemnitor, on the one hand, and the
Indemnified Party, on the other, in connection with the transactions giving rise
to such claim, liability, loss, damage or expense, as well as any other relevant
equitable considerations. The relative benefits received by the Indemnitor, on
the one hand, and the Indemnified Party, on the other, shall be deemed to be in
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the same proportion as the total net proceeds from the sale of Common Stock
under the registration statement or prospectus (before deducting expenses)
received by the Indemnitor shall bear to the total net proceeds from such sale
received by the Indemnified Person. The relative fault of the Indemnitor and of
the Indemnified Person shall be determined by reference to, among other things,
whether the untrue statement of a material fact or the omission to state a
material fact shall relate to information supplied by the Indemnitor or by the
Indemnified Person and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and equitable if
contribution were determined by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the foregoing, (a) the total amount payable by a Holder pursuant to this Section
6.5 shall not exceed an amount equal to the number of shares sold by such Holder
in the registered offering that give rise to any such claim for contribution
multiplied by the selling price per share and (b) no person or entity guilty of
or liable for fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of fraudulent misrepresentation.
6.6 HOLDER-RELATED CLAIMS. If there shall be any claim for indemnification
by or against any Holder or any of its related persons under this Section 6, all
determinations by the Company relating thereto, including, without limitation,
the choice and engagement of counsel, the prosecution of any action and the
terms and conditions of any settlement or compromise, shall be made solely by
the "Company Designees" (as defined in the Stock Purchase Agreement) by majority
vote thereof.
SECTION 7. TERMINATION. This Agreement shall terminate upon the sale or
disposition of beneficial ownership by the Holders of all shares of the Subject
Stock; provided, however, this Agreement shall continue in effect as to any
indemnification and payment or reimbursement obligations herein.
SECTION 8. MISCELLANEOUS.
8.1 ASSIGNMENT. All terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned or delegated by any
party hereto without the prior written consent of the other party.
8.2 ENTIRE AGREEMENT. This Agreement and the other agreements referred to
herein or delivered pursuant hereto contain the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
arrangements or understandings with respect thereto.
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8.3 NOTICES. All notices hereunder shall be in writing and shall be given:
(a) if to the Company, at One Ram Ridge Road, Spring Valley, New York 10977
(attention: Kenneth I. Sawyer), fax number: (914) 425-5097, or such other
address or fax number as the Company shall have designated in writing to the
Holders in accordance with this Section 8.3, with a copy to Hertzog, Calamari &
Gleason, 100 Park Avenue, New York, New York 10017 (attention: Stephen A.
Ollendorff, Esq. and Stephen R. Connoni, Esq.), fax number: (212) 213-1199, (b)
if to Merck, at Frankfurter Strasse 250, 64271 Darmstadt, Germany (attention:
Dr. Rudi Neirinckx), fax number: 011 49 6151 72 3435 with a copy to Coudert
Brothers, 1114 Avenue of the Americas, New York, New York 10036-7703 (attention:
Edwin S. Matthews, Jr., Esq.), fax number: (212) 626-4120, (c) if to Genpharm,
at 85 Advance Road, Etobicoke, Ontario M8Z 2S9, Canada (attention: Chief
Financial Officer), fax number: (416) 236-2940, with a copy to Coudert Brothers,
at 1114 Avenue of the Americas, New York, New York 10036 (attention: Edwin S.
Matthews, Jr., Esq.), fax number: (212) 626-4120, or (d) if to Lipha, at [ ],
with a copy to Coudert Brothers, at 1114 Avenue of the Americas, New York, New
York 10036 (attention: Edwin S. Matthews, Jr., Esq.), fax number: (212) 626-4120
or such other address(es) or fax number(s) as a Holder shall have designated in
writing to the Company in accordance with this Section 8.3. Any notice shall be
deemed to have been given if personally delivered or sent by express commercial
courier or delivery service or by telegram, telefax, telex or facsimile
transmission. Any notice given in any other manner shall be deemed given when
actually received.
8.4 AMENDMENTS; WAIVER. This Agreement may not be amended or terminated,
and no provision hereof may be waived, without the prior written consent of at
least a majority of the Company Designees (on behalf of the Company) and except
pursuant to a written instrument executed by the Company and the Holders. Each
Holder shall not cause, and shall use its best efforts not to permit, the
Company to agree to any amendment, modification or waiver or take any action in
respect of this Agreement, including, without limitation, in respect of any
agreement or settlement relating to a dispute or claim for indemnification
hereunder, without the prior written consent of at least a majority of the
Company Designees, as such term is defined in the Stock Purchase Agreement
(including any replacement(s) therefor as provided in Section 8.1 of the Stock
Purchase Agreement).
8.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
8.6 HEADINGS. The headings of the Sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
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8.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed wholly therein.
8.8 SEVERABILITY. If any term or provision hereof shall be invalid or
unenforceable, (i) the remaining terms and provisions hereof shall be
unimpaired, (ii) any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction and (iii) the invalid or unenforceable term or provision shall be
deemed replaced by a term or provision as determined by a court to be valid and
enforceable and to express, to the fullest extent legally permissible, the
intention of the parties with respect to the invalid or unenforceable term or
provision.
8.9 EXPENSES. Except as otherwise specifically provided in this Agreement,
the parties shall bear their own respective expenses (including, but not limited
to, all fees and expenses of counsel, financial advisers and independent
accountants) incurred in connection with the preparation, negotiation and
execution of this Agreement and the consummation of the transactions
contemplated hereby. To the extent that a Company Designee shall be required to
make any determination or take any action hereunder (including, without
limitation, with respect to indemnification under Section 6 hereof) in his/her
capacity as a Company Designee, the Holders shall cause the Company to, and the
Company shall, promptly reimburse and/or pay any reasonable expenses incurred by
the Company Designee in acting in such capacity. The Company Designees are
intended third-party beneficiaries of this provision.
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IN WITNESS WHEREOF, each of the undersigned has caused this Registration
Rights Agreement to be executed as of the date first written above.
PHARMACEUTICAL RESOURCES, INC.
By: /s/ Kenneth I. Sawyer
--------------------------------
Name: Kenneth I. Sawyer
Title: Chief Executive Officer
& Chairman
LIPHA AMERICAS, INC.
By: /s/ Edwin S. Matthews
--------------------------------
Name: Edwin S. Matthews
Title: Asst. Secretary
MERCK KGaA
By: /s/ Bernhard Scheuble
--------------------------------
Name: Bernhard Scheuble
Title: Chief Executive Officer
Pharma
GENPHARM, INC.
By: /s/ J.N. Tabatznik
--------------------------------
Name: J.N. Tabatznik
Title: Chairman
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