EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of this __ day of September, 2004 by and between BIONOVO, INC.
(the "Company"), and the Purchasers listed on Schedule 1 attached hereto (the
"Purchasers").
W I T N E S S E T H
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WHEREAS, pursuant to a 6% Convertible Secured Note Purchase Agreement,
dated as of the date hereof, between the Company and the Purchasers (the
"PURCHASE AGREEMENT"), the Company has agreed to issue and sell to the Purchaser
an aggregate of $500,000 in principal amount of the Company's 6 % Convertible
Secured Notes due September 2005 (the "Notes"), which Notes are convertible into
shares (the "Underlying Shares") of common stock of the Company, $___ par value
per share ("COMMON STOCK"), in accordance with the terms of the Purchase
Agreement and the Notes. Additionally, pursuant to the Purchase Agreement, the
Company has agreed to provide to the Purchaser one or more warrants (the
"WARRANTS") to purchase shares of the Company's Common Stock (the "WARRANT
SHARES", and together with the Underlying Shares, the "SHARES").
WHEREAS, to induce the Purchasers to execute and deliver the Purchase
Agreement, the Company has agreed to provide to the Purchasers and their
permitted assigns certain registration rights under the Securities Act of 1933,
as amended (the "SECURITIES ACT"), and applicable state securities laws; and
WHEREAS, this Agreement, together with the Notes, the Purchase
Agreement and the Warrants, are hereinafter collectively referred to as the
"TRANSACTION DOCUMENTS".
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "CLAIMS" shall have the meaning ascribed to it in
Section 6(a).
(b) "EXCESS LIABILITY" shall have the meaning ascribed to
it in Section 6(e).
(c) "HOLDER" or "HOLDERS" mean a holder or holders of
Registrable Securities.
(d) "INDEMNIFIED PERSON" shall have the meaning ascribed
to it in Section 6(a).
(e) "REGISTRABLE SECURITIES" shall mean (i) the Shares
and the shares of Common Stock or other securities
issued or issuable to any Purchaser or its permitted
transferee or designee (a) upon conversion of the
Notes and upon the exercise of the Warrants, or (b)
upon any distribution with respect to, any exchange
for or any replacement of such Notes or Warrants, or
(c) upon any conversion, exercise or exchange of any
securities issued in connection with any such
distribution, exchange or replacement; (ii)
securities issued or issuable upon any stock split,
stock dividend, recapitalization or similar event
with respect to such shares of
Common Stock; and (iii) any other security issued as
a dividend or other distribution with respect to, in
exchange for, or in replacement of, the securities
referred to in the preceding clauses.
(f) "REGISTRATION PERIOD" shall have the meaning ascribed
to it in Section 2(iii).
(g) "REGISTRATION STATEMENT" means a registration
statement or registration statements of the Company
filed under the Securities Act covering Registrable
Securities.
(h) "REGISTER," "REGISTERED" and "REGISTRATION" refer to
a registration effected by preparing and filing a
registration statement in compliance with the
Securities Act and pursuant to Rule 415 under the
Securities Act or any successor rule providing for
offering securities on a continuous basis ("RULE
415"), and the declaration or ordering of
effectiveness of such registration statement by the
United States Securities and Exchange Commission (the
"COMMISSION").
(i) "RULE 144" shall have the meaning ascribed to it in
Section 8.
(j) "SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
(k) "SHARES" means the Underlying Shares and the Warrant
Shares.
(l) "VIOLATIONS" shall have the meaning ascribed to it in
Section 6(a).
(m) "WARRANT SHARES" means the shares of Common Stock
issued or issuable upon exercise of, or otherwise in
respect of, the Warrants.
Capitalized terms defined in the introductory paragraph or the recitals
to this Agreement shall have the respective meanings therein provided.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings set forth in the Purchase Agreement or elsewhere in the Transaction
Documents.
2. MANDATORY REGISTRATION.
(i) The Company shall prepare and file with the
Securities and Exchange Commission (the "Commission") not later than the 90th
day (the "FILING DATE") after the effective date of the first merger (the
"MERGER") of the Company with a company required to file reports pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "EXCHANGE
ACT.) a Registration Statement or Registration Statements (as necessary) on Form
SB-2 covering the resale of all of the Registrable Securities, in an amount
sufficient to cover the resale of the Shares issuable upon conversion of the
Notes and exercise of the Warrants. In the event that Form SB-2 is unavailable
and/or inappropriate for such a registration, the Company shall use such other
form as is available and appropriate for such a registration. Any Registration
Statement prepared pursuant hereto shall register for resale at least that
number of shares of Common Stock equal to the Shares. The Company shall use its
best efforts to cause the Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing thereof, but in any
event prior to the 120th day after the Merger (such day referred to herein as
the "Effective Date"); PROVIDED THAT, if the Registration Statement is not
declared effective by the Effective Date then the Company shall pay to each
Purchaser an amount equal to one percent (1%) per 30-day period of the purchase
price paid for the Notes purchased by such Purchaser. Thereafter, for every 30
days that pass during which the Registration Statement has
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not been declared effective, the Company shall pay to each Purchaser an
additional amount equal to one percent (1%) of the purchase price paid for the
Notes purchased by such Purchaser. Each such payment shall be due within five
days of the end of each 30-day period.
(ii) The Company shall use its best efforts to keep each
Registration Statement effective pursuant to Rule 415 at all times until such
date as is the earlier of (i) the date on which all of the Registrable
Securities have been sold and (ii) the date on which the Registrable Securities
(in the opinion of counsel to each Purchaser and acceptable to legal counsel for
the Company) may be immediately sold without restriction (including without
limitation as to volume restrictions by each holder thereof) without
registration under the Securities Act (the "REGISTRATION PERIOD").
(iii) If any offering pursuant to a Registration Statement,
pursuant to Section 2 hereof, involves an underwritten offering (which may only
be with the consent of the Company), each Purchaser shall have the right to
select legal counsel and an investment banker or bankers and manager or managers
to administer to the offering, which investment banker or bankers or manager or
managers shall be reasonably satisfactory to the Company.
3. OBLIGATIONS OF THE COMPANY. In connection with the
registration of the Registrable Securities, the Company shall do each of the
following:
(a) Prepare and file with the Commission the Registration
Statements required by Section 2 of this Agreement and such amendments
(including post-effective amendments) and supplements to the Registration
Statements and the prospectuses used in connection with the Registration
Statements, as may be necessary to keep the Registration effective at all times
during the Registration Period, and, during the Registration Period, to comply
with the provisions of the Securities Act with respect to the disposition of all
of the Registrable Securities until such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in the Registration
Statements;
(b) If the Registrable Securities are included in a
Registration Statement, the Company shall promptly furnish, after such
Registration Statement is prepared, filed with the Commission, publicly
disseminated and distributed and received by the Company, to each Purchaser and
its legal counsel, a copy of the Registration Statement, each preliminary
prospectus, each final prospectus, and all amendments and supplements thereto
and such other documents as each Purchaser may reasonably request in order to
facilitate the disposition of its Registrable Securities;
(c) As soon as practicable for the Company and its
counsel, but no later than five business days after receipt thereof, furnish to
each Purchaser and its counsel copies of appropriate correspondence between the
Company and the Commission with respect to any registration statement or
amendment or supplement thereto filed pursuant to this Agreement;
(d) Use all best efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such other
securities or blue sky laws, if applicable, of such jurisdictions as the
Purchaser may reasonably request, (ii) prepare and file in those jurisdictions
such amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof at all times during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period and (iv)
take all other actions necessary or advisable to qualify the Registrable
Securities for sale in such jurisdictions, except that the Company shall not for
any such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not
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but for the requirements of this subsection (d) be obligated to be so qualified,
or to subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(e) List such securities on The American Stock Exchange,
if the Company's securities are listed on such market, and all the other
national securities exchanges on which any securities of the Company are then
listed, and file any filings required by The American Stock Exchange and/or such
other securities exchanges;
(f) Notify each Purchaser and (if requested by such
Purchaser) confirm such advice in writing, (i) when or if the prospectus or any
prospectus supplement or post-effective amendment has been filed with the
Commission, and, with respect to the Registration Statement or any
post-effective amendment, when the same has been declared effective by the
Commission, (ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and (v) of the happening of any event as a result of which the
prospectus included in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(g) If any fact contemplated by clause (v) of paragraph
(f), above, shall exist, prepare a supplement or post-effective amendment to the
Registration Statement or the related prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchaser of the Registrable Securities the prospectus will not
contain an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(h) If the Company has consented to an underwritten
offering and such offering is underwritten, at the request of any Purchaser, to
furnish on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration: (i) an opinion dated such
date of counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to such Purchaser, stating that such
registration statement has become effective under the Securities Act and that
(A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act and (B)
the registration statement, the related prospectus and each amendment or
supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements or other financial data contained
therein) and (ii) a letter dated such date from the Company's independent public
accountants addressed to the underwriters and to such Purchaser, stating that
they are independent public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to such registration as such underwriters may reasonably
request;
(i) Cooperate with the Purchasers to facilitate the
timely preparation and delivery of certificates for the Registrable Securities
to be offered pursuant to the Registration
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Statement and to enable such certificates for the Registrable Securities to be
in such denominations or amounts, as the case may be, as the Purchaser may
reasonably request, and registered in such names as the Purchasers may request;
and, within three business days after a Registration Statement which includes
Registrable Securities is ordered effective by the Commission, the Company shall
deliver, and shall cause legal counsel selected by the Company to deliver, to
the transfer agent for the Registrable Securities (with copies to each
Purchaser) an appropriate instruction and opinion of such counsel, satisfactory
to the Company, and the Purchaser and its legal counsel;
(j) Enter into customary agreements (including, in the
case of an underwritten offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to indemnification
and contribution contained herein) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in connection therewith:
(i) make such representations and warranties to
each Purchaser and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings;
(ii) to the extent requested and customary for
the relevant transaction, enter into a securities sales agreement with any
Purchaser and such representative of such Purchaser as such Purchaser shall
select relating to the Registration and providing for, among other things, the
appointment of such representative as agent for such Purchaser for the purpose
of soliciting purchases of Registrable Securities, which agreement shall be
customary in form, substance and scope and shall contain customary
representations, warranties and covenants; and
(iii) deliver such customary documents and
certificates as may be reasonably requested by any Purchaser whose Registrable
Securities are being sold or by the managing underwriters, if any.
The above shall be done (y) at the effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (z) at each closing under any underwriting or similar agreement as and to
the extent required thereunder.
(k) The Company shall hold in confidence and not make any
disclosure of information concerning any Purchaser provided to the Company
unless (i) disclosure of such information is necessary to comply with federal or
state securities laws and/or the requests of any self-regulatory organizations,
(ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other order from a court
or governmental body of competent jurisdiction, or (iv) such information has
been made generally available to the public other than by disclosure in
violation of this or any other agreement. The Company agrees that it shall, upon
learning that disclosure of such information concerning any Purchaser is sought
in or by a court or governmental body of competent jurisdiction or though other
means, give prompt notice to such Purchaser prior to making such disclosure, and
allow such Purchaser, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
4. OBLIGATIONS OF THE PURCHASER TO PROVIDE INFORMATION. In
connection with the registration of the Registrable Securities, each Purchaser
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities, and each Purchaser shall execute any and all
such
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documents in connection with such registration as the Company and its legal
counsel may reasonably request. At least five business days prior to the first
anticipated filing date of the Registration Statement, the Company shall notify
each Purchaser of the information the Company requires of any Purchaser to be
included in the Registration Statement. Each Purchaser shall give sufficient
notice to the Company before selling any Registrable Securities so that the
Company may prepare and file any necessary post-effective amendments to the
Registration Statement or such additional filings as shall be necessary or
desirable.
5. EXPENSES OF REGISTRATION. All expenses, other than
underwriting discounts and commissions and other fees and expenses of investment
bankers and other than brokerage commissions, incurred in connection with
registrations, filings or qualifications pursuant to Section 3, but including,
without limitation, all registration, listing, and qualification fees, printing
and accounting fees, and the fees and disbursements of counsel for the Company,
and the fees of one counsel to Duncan Capital, LLC, as purchaser representative
for the Purchasers, with respect to the Registration Statement filed pursuant
hereto, shall be borne by the Company provided, that the expenses of such
counsel shall not exceed $50,000. Any amounts paid by the Company for
transaction and/or registration fees should not exceed $70,000.
6. INDEMNIFICATION. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) The Company will indemnify and hold harmless the
Purchasers, each of the investment advisor and sub-advisor of each Purchaser and
their officers, directors, members, partners and shareholders, and each person,
if any, who controls any Purchasers within the meaning of the Securities Act or
the Exchange Act (each, an "INDEMNIFIED PERSON"), against any losses, claims,
damages, liabilities or expenses (joint or several) incurred (collectively,
"CLAIMS") to which any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment thereof
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances in which they were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the
Commission) or the omission to state therein any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state or
foreign securities law or any rule or regulation under the Securities Act, the
Exchange Act or any state or foreign securities law (the matters in foregoing
clauses (i) through (iii) being, collectively, "VIOLATIONS"). The Company shall,
subject to the provisions of Section 6(b) below, reimburse each Purchaser,
promptly as such expenses are incurred and are due and payable, for any
reasonable legal and other reasonable costs, expenses and disbursements in
giving testimony or furnishing documents in response to a subpoena or otherwise,
including without limitation, the costs, expenses and disbursements, as and when
incurred, of investigating, preparing or defending any such action, suit,
proceeding or investigation (whether or not in connection with litigation in
which such Purchaser is a party), incurred by it in connection with the
investigation or defense of any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a) shall not (i) apply to any Claim arising out of or based upon a
modification which occurs in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or
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supplement thereto; (ii) be available to the extent that such Claim is based
upon a failure of any Purchaser to deliver or to cause to be delivered the
prospectus made available by the Company, if such prospectus was timely made
available by the Company pursuant to Section 3(b) hereof; or (iii) apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the Registrable Securities by any Purchaser
pursuant to Section 9. Notwithstanding anything to the contrary in this
Agreement or the Purchase Agreement, the aggregate payments for indemnification,
including the reasonable fees and expenses of legal counsel, made by the Company
to each Purchaser or each of its officers, directors, and shareholders, and each
person, if any, who controls the Purchaser within the meaning of the Securities
Act or the Exchange Act, pursuant to this Section 6 with respect to a Violation,
Claim, or series of Violations or Claims, shall not exceed an amount equal to
the Purchase Price.
(b) The Purchaser will indemnify the Company and its
officers and directors against any Claims arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company, by or on behalf of the Purchaser, expressly
for use in connection with the preparation of the Registration Statement
(including any modifications, amendments or supplements thereto), subject to
such limitations and conditions as are applicable to the indemnification
provided by the Company in this Section 6; provided, however, that in no event
shall any indemnity by such Purchaser under this Section 6 exceed the amount of
the net proceeds received by such Purchaser in connection with the offering
effected through such Registration Statement.
(c) Promptly after receipt by an Indemnified Person under
this Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and to the
extent that the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified
Person, provided, however, that an Indemnified Person shall have the right to
retain its own counsel with the reasonable fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the Indemnified Person
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person and any other party
represented by such counsel in such proceeding. In such event, the Company shall
pay for only one separate legal counsel for the Purchaser, and such legal
counsel shall be selected by the Purchaser. The failure to deliver written
notice to an indemnifying party within a reasonable time after the commencement
of any such action shall not relieve such indemnifying party of any liability to
the Indemnified Person under this Section 6, except to the extent that the
indemnifying party is materially prejudiced in its ability to such action. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as such
expense, loss, damage or liability is incurred and is due and payable.
(d) No indemnifying party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Person of an unconditional and irrevocable release from all
liability in respect of such claim or litigation.
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(e) Notwithstanding the foregoing, to the extent that any
provisions relating to indemnification or contribution contained in the
underwriting agreements entered into among the Company, the underwriters and the
Purchaser in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in such underwriting agreements
shall be controlling as to the Registrable Securities included in the public
offering; PROVIDED, HOWEVER, that if, as a result of this Section 6(e), the
Purchaser, or the investment advisor or sub-investment advisor of the Purchaser
or each of its officers, directors, members, partners, shareholders or any
person controlling the Purchaser is or are held liable with respect to any Claim
for which they would be entitled to indemnification hereunder but for this
Section 6(e) in an amount which exceeds the aggregate proceeds received by such
Purchaser from the sale of Registrable Securities included in a registration
pursuant to such underwriting agreement (the "EXCESS LIABILITY"), the Company
shall reimburse the Purchaser for such Excess Liability.
7. CONTRIBUTION. To the extent any indemnification by an
indemnifying party is prohibited or limited under applicable law, the
indemnifying party agrees to contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the Indemnified Person on the other hand
in connection with the statements or omissions which resulted in such Claim, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and 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 on which such Claim is based relates to
information supplied by the indemnifying party or by the Indemnified Person, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Notwithstanding the forgoing,
(a) no contribution shall be made under circumstances where the payor would not
have been liable for indemnification under the fault standards set forth in
Section 6, (b) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of Registrable Securities who
was not guilty of such fraudulent misrepresentation and (c) contribution by any
seller of Registrable Securities shall be limited in amount to the net proceeds
received by such seller from the sale of such Registrable Securities. The
Company and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by PRO RATA allocation
(even if any Purchaser and any other party were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in this Section.
8. REPORTS UNDER EXCHANGE ACT. With a view to making available to
the Purchasers the benefits of Rule 144 promulgated under the Securities Act or
any other similar rule or regulation of the Commission that may at any time
permit the Purchasers to sell securities of the Company to the public without
registration ("RULE 144"), after the Merger, the Company agrees to cause its
successor in interest by merger to:
(i) make and keep public information available,
as those terms are understood and defined in Rule 144;
(ii) file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act; and
(iii) furnish to any Purchaser so long as such
Purchaser owns Shares or Notes promptly upon request, (i) a written statement by
the Company that it has complied with the reporting requirements of the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual or
periodic report of the Company and such other reports and documents so filed by
the Company and (iii) such other information as may be reasonably requested to
permit the Purchaser to sell such securities pursuant to Rule 144 without
registration.
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9. ASSIGNMENT OF THE REGISTRATION RIGHTS. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by any Purchaser to any transferee of the Shares or Notes
held by such Purchaser if: (a) such Purchaser agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment; (b) the
Company is, at the time of such transfer within five business days after such
transfer or assignment, furnished with written notice of the name and address of
such transferee or assignee; (c) at or before the time the Company receives the
written notice contemplated by clause (b) of this sentence, the transferee or
assignee agrees in writing with the Company to be bound by all of the provisions
contained herein; and (d) the transfer of the relevant Shares complies with the
restrictions set forth in Section 4 of the Purchase Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and each such
Purchaser. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon such Purchaser and the Company.
11. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of
Registrable Securities whenever such person or entity owns of record such
Registrable Securities or Notes convertible into such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two or
more persons or entities with respect to the same Registrable Securities, the
Company shall act upon the basis of the instructions, notice or election
received from the registered owner of such Registrable Securities or Notes.
(b) Any notice required or permitted hereunder shall be
given in writing (unless otherwise specified herein) and shall be effective upon
personal delivery, via facsimile (upon receipt of confirmation of error-free
transmission) or two business days following deposit of such notice with an
internationally recognized courier service, with postage prepaid and addressed
to each of the other parties thereunto entitled at (i) if to the Company, to the
address set forth below in this Section 11(b), or (ii) if to a Purchaser, to the
address set forth below such Purchaser's name on the signature page below, or
(iii) at such other addresses as a party may designate by ten (10) days advance
written notice to each of the other parties hereto.
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All notices shall be addressed as follows:
Company: Bionovo, Inc.
2320 Woolsey St., Suite 100
Berkeley, CA, 94705
Tel.:
Fax:
with a copy to:
Greenberg Traurig
200 Park Avenue
New York, NY 10022
ATTENTION: Robert H. Cohen, Esq.
Tel: 212-801-6907
Fax: 212-801-6400
Purchasers: Bridges and PIPES, LLC
830 Third Avenue
14th Floor
New York, NY 10022
ATTENTION: David Fuchs
Tel: 212-355-1601
Fax: 212-581-7010
Rockwood Group, LLC
830 Third Avenue
14th Floor
New York, NY 10022
ATTENTION: Dan Purjes
Tel: 212-922-2083
Fax: 212-581-5193
DCOFI Master LDC
830 3rd Avenue, 14th Floor
New York, NY 10022
ATTENTION: Richard Smithline
Tel: 212-922-2086
Fax: 212-922-2081
with a copy to:
10
Katten Muchin Zavis Rosenman
575 Madison Avenue
New York, NY 10022
ATTENTION: Howard Jacobs, Esq.
Tel: 212-940-8505
Fax: 212-940-8776
(c) Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New York, without giving effect to
conflicts of laws issues. Each of the parties agrees to the jurisdiction of the
federal courts whose districts encompass any part of the City of New York or the
state courts of the State of New York sitting in the City of New York in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on FORUM NON CONVENIENS, to the bringing of any such proceeding in such
jurisdictions. This Agreement may be signed in two or more counterparts, each of
which shall be deemed an original. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such validity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Agreement or the validity or enforceability of this Agreement in any other
jurisdiction. Subject to the provisions of Section 10 hereof, this Agreement may
be amended only by an instrument in writing signed by the party to be charged
with enforcement.
(e) This Agreement, together with the other Transaction
Documents, constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
(f) Subject to the requirements of Section 9 hereof, this
Agreement shall inure for the benefit of and be binding upon the successors and
assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(h) The Company acknowledges that any failure by the
Company to perform its obligations under Section 2, or any delay in such
performance could result in direct and indirect damages to the Purchasers, and
the Company agrees that, after notice and time to cure in addition to any other
liability the Company may have by reason of any such failure or delay, the
Company shall be liable for all direct and consequential damages caused by any
such failure or delay. Nothing herein shall limit each Purchaser's right to
pursue any claim seeking such direct or consequential damages.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed as of the date first written above.
BIONOVO, INC.
By:
-------------------------------------------
Name:
Title:
PURCHASERS:
Bridges & PIPES LLC
830 3rd Avenue, 14th Floor
New York, NY 10022
Tax ID# 72-153-8933
By:
--------------------------------
Name:
Title:
DCOFI Master LDC
830 3rd Avenue, 14th Floor
New York, NY 10022
EIN #: 98-0432791
By:
--------------------------------
Name:
Title:
Rockwood Group LLC
830 3rd Avenue, 14th Floor
New York, NY 10022
Tax ID# 22-3860770
By:
--------------------------------
Name:
Title:
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SCHEDULE 1
Bridges & PIPES LLC
830 3rd Avenue, 14th Floor
New York, NY 10022
Tax ID# 72-153-8933
$250,000.00
DCOFI Master LDC
830 3rd Avenue, 14th Floor
New York, NY 10022
EIN #: 98-0432791
$200,000.00
Rockwood Group LLC
830 3rd Avenue, 14th Floor
New York, NY 10022
Tax ID# 22-3860770
$50,000.00
13