LEUKOSITE, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
December 18, 1997 by and between LEUKOSITE, INC., a Delaware corporation (the
"Company"), and GENENTECH, INC., a Delaware corporation (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company has agreed to issue and sell to the Investor 336,135
shares (the "Common Shares") of the Company's common stock, $0.01 par value per
share (the "Common Stock"), and the Company has agreed to issue to the Investor
a Common Stock Purchase Warrant exercisable for 250,000 shares of Common Stock
(the "Warrant Shares"), all upon the terms and conditions set forth in that
certain Securities Purchase Agreement, dated as of the date hereof, between the
Company and the Investor (as amended and in effect from time to time, the
"Securities Purchase Agreement");
WHEREAS, the Investor has agreed to make available to the Company two
lines of credit upon the terms and conditions set forth in that certain Loan
Agreement, dated as of the date hereof, between the Company and the Investor
(as amended and in effect from time to time, the "Loan Agreement");
WHEREAS, the Company has agreed, under certain circumstances, to provide
for the conversion into shares of capital stock of the Company amounts that may
be outstanding at any time and from time to time under the Loan Agreement, said
conversion to be pursuant to, and in accordance with, the terms, conditions and
provisions of the Loan Agreement; and
WHEREAS, the terms of the Securities Purchase Agreement provide that it
shall be a condition precedent to the closing of the transactions thereunder,
for the Company and the Investor to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
therefor below or elsewhere in this Agreement as described below:
"Affiliate" of a Person means any other Person controlled by, controlling
or under common control with such Person.
"Board" shall mean the board of directors of the Company.
"Closing" shall have the meaning ascribed to such term in the Securities
Purchase Agreement.
"Common Shares" shall mean the 336,135 shares of Common Stock purchased
by the Investor from the Company, at the Closing, pursuant to the Securities
Purchase Agreement.
"Common Stock" shall mean common stock, $0.01 par value per share, of the
Company.
"Conversion Common Shares" shall mean those shares of Common Stock issued
upon conversion of (i) any or all Development Loans and/or Profit-Sharing
Option Loans outstanding at any time and from time to time or (ii) any and all
Conversion Preferred Shares outstanding at any time
and from time to time.
"Conversion Preferred Shares" shall mean those shares of any series of
preferred stock, $0.01 par value per share, of the Company that are issued upon
conversion of any or all Development Loans and/or Profit-Sharing Option Loans
outstanding at any time and from time to time.
"Conversion Shares" shall mean the Conversion Common Shares and the
Conversion Preferred Shares, collectively.
"Development Loans" shall have the meaning ascribed to such term in the
Loan Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Person" shall mean an individual, partnership, limited liability
company, corporation, association, trust, joint venture, unincorporated
organization, and any government, governmental department or agency or
political subdivision thereof.
"Profit-Sharing Loans" shall have the meaning ascribed to such term in
the Loan Agreement.
"Registrable Shares" shall mean the Common Shares, the Warrant Shares and
the Conversion Common Shares; provided, however, that the term "Registrable
Shares" shall not include any of the Common Shares, the Warrant Shares or the
Conversion Common Shares that can be sold in any three (3) month period
pursuant to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, regulation or law.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares" shall mean the Common Shares, the Warrant Shares and the
Conversion Shares.
"Warrant" shall mean the Common Stock Purchase Warrant, dated as of the
date hereof, issued by the Company to the Investor, at the Closing, pursuant to
the Securities Purchase Agreement, as such Common Stock Purchase Warrant may be
amended and in effect from time to time.
"Warrant Shares" shall mean those shares of Common Stock issued upon
exercise of the Warrant.
2. DEMAND REGISTRATION.
(a) Registration Upon Request. In the event that, at any time from
time to time after August 14, 1998, the Company shall receive a written request
from the Investor requesting that the Company effect the registration under the
Securities Act of all or any of the Registrable Shares and specifying the
intended method of disposition thereof (each such written request being
hereinafter referred to as a "Registration Request"), the Company shall, within
thirty (30) days after receipt of such notice, use commercially reasonable
efforts to file a registration statement under the Securities Act for purposes
of registering the number of Registrable Shares specified by the Investor in
such Registration Request; provided, however, that the obligations of the
Company under this Section 2 shall be subject to the limitations set forth in
Sections 2(b), 2(c), 2(d), 2(e), 2(f), 2(g) and 2(h) below. The Company may
include in any registration pursuant to this Section 2(a) additional shares of
Common Stock for sale for its own account or for the account of any other
Person.
(b) No Right to Underwritten Offering. The Investor shall have no
right to request that the offering, sale, disposition or distribution of any
Registrable Shares to be registered under the Securities Act pursuant to
Section 2(a) hereof be effected pursuant to an underwritten offering. The
Company may, in its sole and absolute discretion, decide or determine that any
Registrable Shares to be registered under the Securities Act pursuant to
Section 2(a) hereof shall be offered, sold, disposed of or distributed in an
underwritten offering. If a registration pursuant to Section 2(a) hereof
involves an underwritten offering, the underwriter or underwriters thereof
shall be selected by the Company in its sole and absolute discretion.
(c) Priority of Demand Registrations. If a registration pursuant to
Section 2(a) hereof involves an underwritten offering, and the managing
underwriter shall advise the Company in writing that, in its opinion, the
number of shares of Common Stock requested to be included in such registration
exceeds the number which can be sold in such underwritten offering, the Company
will include in such registration, to the extent of the number of shares of
Common Stock which the Company is so advised can be sold in such offering, (i)
first, the number of Registrable Shares requested to be included in such
registration by the Investor and (ii) second, the other shares of Common Stock
proposed to be included in such registration, in accordance with the
priorities, if any, then existing among the Company and the holders of such
other shares of Common Stock.
(d) Limitation on Number of Requests. Subject to the provisions set
forth below in this Section 2(d), the Investor shall not be entitled to request
more than two (2) registrations, in the aggregate, pursuant to the provisions
of Section 2(a) hereof. In the event that the Investor shall exercise the
Warrant, then the Investor shall become entitled to request an additional
registration pursuant to the provisions of Section 2(a) hereof. In the event
that (i) the Company shall effect at least two prepayments of outstanding
principal or accrued and unpaid interest under or in connection with any or all
Development Loans and (ii) such prepayments shall be effected by converting the
amount or amounts being prepaid into Conversion Common Shares, then the
Investor shall become entitled to request an additional registration pursuant
to the provisions of Section 2(a) hereof. In the event that the Investor shall
acquire any Conversion Common Shares upon conversion of any or all outstanding
principal or accrued and unpaid interest under or in connection with any or all
Profit-Sharing Loans, then the Investor shall become entitled to request an
additional registration pursuant to the provisions of Section 2(a) hereof.
Notwithstanding anything in this Section 2(d) to the contrary, in no event
shall the Investor be entitled to request more than two (2) registrations
pursuant to the provisions of Section 2(a) hereof within any twelve (12) month
period.
(e) Limitation on Timing of Requests. Notwithstanding anything
expressed or implied in this Section 2 to the contrary, the Investors may not
request a registration pursuant to Section 2(a) hereof (i) at any time during
the period commencing on the date that any other request for registration
pursuant to Section 2(a) has been made by the Investor and ending on the 180th
day following the effective date of any registration statement filed by the
Company with the SEC in connection with such other request or (ii) at any time
during the period commencing on the date that any registration has been filed
by the Company with the SEC in connection with an underwritten offering and
ending on the 180th day following the effective date of such registration
statement, provided that the Company is continuing to pursue such registration
with reasonable diligence.
(f) Deferral. Notwithstanding anything expressed or implied in this
Section 2 to the contrary, if, following receipt of any Registration Request
from the Investor, the Company shall furnish to the Investor a certificate
signed by the President or Chief Financial Officer of the Company stating that
the Board has made the good faith determination that the registration requested
by the Investor pursuant to such Registration Request would require premature
disclosure of material, nonpublic information concerning the Company, its
business or prospects and that it is therefore essential to defer such
registration, then the Company shall have the right to defer the filing of the
registration statement pursuant to such Registration Request for a period of
not more than (70) seventy days after receipt of such Registration Request from
the Investor. The Company undertakes to request that the SEC declare such
registration statement effective within two Business Days of the earlier of (i)
the date that the Company receives notice from the Staff of the SEC's Division
of Corporate Finance (the "Staff") to the effect that the Staff will not review
such registration statement or (ii) the date that the Company receives notice
from the Staff that it does not have any further comments to such registration
statement and that it is prepared to entertain a request for acceleration of
the effective date of such registration statement. The Company may not utilize
the deferral right provided for in this Section 2(f) more than once with
respect to each request made pursuant to, and in accordance with, this
Agreement for a registration pursuant to Section 2(a) hereof. In the event the
Company exercises its right of deferral under this Section 2(f), the Investor
will be entitled to withdraw its request for registration pursuant to Section
2(a) hereof and, if such request is so withdrawn pursuant to this Section 2(f),
such request will not count as a request for registration for purposes of
Section 2(d) hereof.
(g) Availability of Form S-3. Unless the Company otherwise
determines in its sole and absolute discretion, any registration that the
Company is required to effect pursuant to Section 2(a) hereof shall be effected
pursuant to a registration statement on Form S-3 or any substitute or successor
Form. If the Company is not eligible to use Form S-3 or any substitute or
successor Form at the time that the Investor requests any registration pursuant
to Section 2(a) hereof, then the Company shall effect such registration
pursuant a registration statement on any other Form under the Securities Act
that is then available to effect such registration.
(h) Limitation on the Company's Obligation. Notwithstanding anything
expressed or implied in this Section 2 to the contrary, the Company shall not
be obligated to effect any registration pursuant to this Section 2 if the
Investor proposes to sell Registrable Shares at an aggregate price to the
public of less than Two Million Dollars ($2,000,000).
3. OBLIGATIONS OF THE COMPANY. Whenever the Company is required under
Section 2 hereof to use commercially reasonable efforts to effect the
registration of any of the Registrable Shares of the Investor, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Shares within thirty (30) days of receipt of
Investor's written request and use commercially reasonable efforts to
cause such registration statement to become and remain effective;
provided, however, that the Company shall in no event be obligated to
cause any such registration statement to remain effective for more than
90 days;
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares
covered by such registration statement;
(c) Furnish to the Investor such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents (including, without
limitation, prospectus amendments and supplements as are prepared by the
Company in accordance with Section 3(d) below) as the Investor may
reasonably request in order to facilitate the disposition of such
Registrable Shares;
(d) Notify the Investor, at any time when a prospectus relating to
such registration statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in or relating to such registration statement
contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading; and, thereafter,
the Company will promptly prepare (and, when completed, give notice to
the Investor) a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Shares, such
prospectus will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not
misleading; provided that upon such notification by the Company, the
Investor will not offer or sell Registrable Shares until the Company has
notified the Investor that it has prepared a supplement or amendment to
such prospectus and delivered copies of such supplement or amendment to
the Investor (it being understood and agreed by the Company that the
foregoing proviso shall in no way diminish or otherwise impair the
Company's obligation to promptly prepare a prospectus amendment or
supplement as above provided in this Section 3(d) and deliver copies of
same as above provided in Section 3(c) hereof).
4. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the Investor shall furnish to the Company such information regarding it and the
securities of the Company held by it as the Company shall reasonably request
and as shall be required in order to effect any registration by the Company
pursuant to this Agreement.
5. EXPENSES OF REGISTRATION. All expenses incurred in connection with a
registration pursuant to this Agreement (excluding underwriting commissions and
discounts and counsel fees of the Investor), including, without limitation, all
registration and qualification fees, printing fees and fees and disbursements
of counsel for the Company, shall be borne by the Company.
6. DELAY OF REGISTRATION. The Investor shall not take any action to
restrain, enjoin or otherwise delay any registration by the Company as the
result of any controversy which might arise with respect to the interpretation
or implementation of this Agreement.
7. INDEMNIFICATION. In the event that any Registrable Shares of the
Investor are included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Investor, any underwriter (as defined in the Securities
Act) for the Company, and each officer and director of the Investor or
such underwriter and each person, if any, who controls the Investor or
such underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which they
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue or alleged untrue statement of
any material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state in such registration statement,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, a material fact
required to be stated therein, or necessary to make the statements
therein not misleading; and the Company will reimburse the Investor, such
underwriter or such officer, director or controlling person for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action if it is judicially determined that there were material
misstatements or omissions. Notwithstanding anything in the foregoing
provisions of this Section 7(a) to the contrary, (i) the indemnity
agreement contained in this Section 7(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), and (ii) the Company shall
not be liable under this Section 7(a) for or in connection with any such
loss, claim, damage, liability or action to the extent that it arises out
of or is based upon an untrue statement or alleged untrue statement or
omission made in connection with such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by the Investor,
any underwriter or any controlling person with respect to the Investor or
such underwriter.
(b) To the extent permitted by law, the Investor will indemnify and
hold harmless the Company, each of its directors, each of its officers
who have signed such registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any
underwriter for the Company (within the meaning of the Securities Act),
against any losses, claims, damages or liabilities to which the Company
or any such director, officer, controlling person, or underwriter may
become subject to, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any untrue or alleged untrue statement of
any material fact contained in such registration statement, including any
preliminary prospectus contained therein or any amendments or supplements
thereto, or arise out of or are based upon the omission or alleged
omission to state in such registration statement, including any
preliminary prospectus contained therein or any amendments or supplements
thereto, a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished by the
Investor expressly for use in connection with such registration; and the
Investor will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, controlling person or
underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action if it is judicially determined that
there were material misstatements or omissions. Notwithstanding anything
in the foregoing provisions of this Section 7(b) to the contrary, (i) the
liability of the Investor under this Section 7(b) shall be limited to the
proceeds (net of underwriting discounts and commissions, if any) received
by the Investor from the sale of Registrable Shares covered by such
registration statement, and (ii) the indemnity agreement contained in
this Section 7(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Investor (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action against such
indemnified party, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate in and, to
the extent the indemnifying party desires, to assume at its expense the
defense thereof with counsel mutually satisfactory to the parties. The
failure to notify an indemnifying party promptly of the commencement of
any such action, if prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified
party under this Section 7, but the omission so to notify the
indemnifying party will not relieve him of any liability which he may
have to the indemnified party other than under this Section 7.
8. LOCKUP AGREEMENT. The Investor hereby agrees that, at the written
request of the Company or any managing underwriter of any underwritten offering
of securities of the Company, such Investor shall not, without the prior
written consent of the Company or such managing underwriter, sell, make any
short sale of, loan, grant any option for the purchase of, pledge, encumber, or
otherwise dispose of, or exercise any registration rights with respect to, any
Shares during the 180 day period commencing on the effective date of the
registration statement relating to such underwritten offering of the Company's
securities. Notwithstanding the foregoing provisions of this Section 8, the
Investor may continue to maintain any hedge position which the Investor has
entered into prior to the 90th day preceding the effective date of such
registration statement.
9. NO TRANSFER OF REGISTRATION RIGHTS. Notwithstanding anything expressed
or implied in this Agreement to the contrary, the Investor shall not assign,
transfer or convey all or any of his rights under this Agreement, except with
the prior written consent of the Company.
10. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or terminated, and
no rights, obligations or provisions hereunder or hereof may be waived, except
with the written consent of the Investor and the Company. Notwithstanding
anything in this Agreement to the contrary, if at any time the Investor shall
cease to own, or have any future right to acquire, any Shares, all of the
Investor's rights under this Agreement shall immediately terminate, except for
any rights that the Investor may have under Section 7 hereof.
(b) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware (without giving effect to
any conflict-of-laws provisions that would result in the application of the
substantive law of a different jurisdiction), and shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
(c) Any notice, demand, request or other communication hereunder to
either party shall be deemed to be sufficient if contained in a written
instrument delivered in person or duly sent by overnight courier service or by
first class, registered or certified mail, postage prepaid, or telecopied with
a confirmation copy by regular, certified or overnight mail, addressed or
telecopied, as the case may be, to such party at the address or telecopier
number, as the case may be, set forth below or such other address or telecopier
number, as the case may be, as may hereafter be designated in writing by the
addressee to the addressor:
LeukoSite, Inc.
215 First Street
Cambridge, MA 02142
Attention:President (one copy)
Chief Financial Officer (another copy)
Telecopier: (617) 621-9349
and a copy to:
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Attention: Justin P. Morreale, Esq.
Telecopier: (617) 951-8736
Genentech, Inc.
1 DNA Way
South San Francisco, CA 94080
Attention: Corporate Secretary
Telecopier: 650-952-9881
All of such notices, requests and other communications shall be deemed to have
been received: (i) in the case of personal delivery, on the date of such
delivery; (ii) in the case of overnight courier service, the business day
following the date of receipt by the overnight courier; (iii) in the case of
first class, registered or certified mail, on the earlier of (A) receipt
thereof or (B) the fifth business day after deposit in the mail; and (iv) in
the case of facsimile transmission, when confirmed by facsimile machine report.
(d) The parties acknowledge and agree that, in the event of any
breach of this Agreement, remedies at law will be inadequate, and each party
hereto shall be entitled to specific performance of the obligations of the
other party hereto and to such appropriate injunctive relief as may be granted
by a court of competent jurisdiction.
(e) This Agreement constitutes and contains the entire agreement and
understanding of the parties with respect to the subject matter hereof, and it
also supersedes any and all prior negotiations, correspondence, agreements or
understandings with respect to the subject matter hereof.
(f) This Agreement may be executed in a number of counterparts, all
of which together shall for all purposes constitute one Agreement binding on
all the parties hereto notwithstanding that all such parties have not signed
the same counterpart.
[Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
LEUKOSITE, INC.
By:___________________________________
Christopher K. Mirabelli,
President
INVESTOR
GENENTECH, INC.
By:___________________________________
Name:
Title: