Exhibit 10.21
EXECUTION VERSION
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement (the
"AGREEMENT") is entered into as of March 3, 2005 by and among EpiCept
Corporation, a Delaware corporation (the "CORPORATION"); the persons and
entities listed on Schedule A hereto and certain other persons or entities that
become parties to this Agreement after the date hereof in accordance with
Section 21(a) hereof (the "SERIES A INVESTORS"); the persons and entities listed
on Schedule B hereto and certain other persons or entities that become parties
to this Agreement after the date hereof in accordance with Section 21(b) hereof
(the "SERIES B INVESTORS"); effective as of December 28, 2000, the persons and
entities listed on Schedule C hereto and certain other persons or entities that
become parties to this Agreement after December 28, 2000 in accordance with
Section 21(c) hereof (the "SERIES C INVESTORS"); and effective as of March 3,
2005, the persons and entities listed on Schedule D hereto (the "NEW WARRANT
HOLDERS," and, together with the Series C Investors, the Series B Investors and
the Series A Investors, the "INVESTORS"); and Rainer K. Liedtke ("LIEDTKE") and
his wife Hanne Liedtke (Liedtke and his wife being hereinafter referred to
collectively as the "FOUNDERS").
WHEREAS, the Corporation, the Founders and certain of the Series A
Investors are parties to a Registration Rights Agreement, dated as of April 28,
1997 (the "OLD REGISTRATION RIGHTS AGREEMENT"); and
WHEREAS, the Corporation, the Founders, the Series A Investors and
the Series B Investors entered into the Amended and Restated Registration Rights
Agreement as of January 28, 2000 (the "FIRST AMENDED REGISTRATION RIGHTS
AGREEMENT"); and
WHEREAS, the Corporation, the Founders, the Series A Investors, the
Series B Investors and the Series C Investors entered into the First Amendment
to the Amended and Restated Registration Rights Agreement as of December 28,
2000 (the "FIRST AMENDMENT"); and
WHEREAS, the Corporation wishes to issue to the New Warrant Holders
certain Stock Purchase Warrants (as defined below) pursuant to the Note Purchase
Agreement dated as of March 3, 2005 (the "PURCHASE AGREEMENT"); and
WHEREAS, as a condition to entering into the Purchase Agreement, the
New Warrant Holders have required that this Agreement be amended and restated as
set forth herein, and such amendment has been approved by all requisite action
of the Corporation, the Series C Investors, the Series B Investors and the
Series A Investors.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree to amend and restate
the First Amendment to read in its entirety as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(b) The term "Common Stock" shall mean the Corporation's Common
Stock, par value $.000l per share.
(c) The term "Founders' Shares" means the three million nine
hundred ninety-nine thousand six hundred seven-eight (3,999,678) shares of
Common Stock held beneficially and of record by the Founders as of the date
hereof.
(d) The term "Holder" means any New Warrant Holder, any Series C
Holder, any Series B Holder and any Series A Holder.
(e) The term "New Registrable Securities" means the Common Stock
issuable upon exercise of the Stock Purchase Warrants.
(f) The term "New Warrant Holder" means any holder of New
Registrable Securities.
(g) The term "Preferred Stock" shall mean the Series A Preferred
Stock, the Series B Preferred Stock and the Series C Preferred Stock.
(h) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
(i) The term "Registrable Securities" means the New Registrable
Securities, the Series C Registrable Securities, the Series B Registrable
Securities and the Series A Registrable Securities.
(j) The term "SEC" means the Securities and Exchange Commission.
(k) The term "Securities Act" means the Securities Act of 1933, as
amended.
(l) The term "Series A Holder" means any holder of Series A
Registrable Securities.
(m) The term "Series A Preferred Stock" shall mean the
Corporation's Series A Convertible Preferred Stock, par value $.0001 per share.
(n) The term "Series A Registrable Securities" means (1) the Common
Stock issuable upon conversion of the Series A Preferred Stock, (2) any Common
Stock purchased by a Series A Investor (or its permitted transferees) pursuant
to Section 3.1 of the Amended and Restated Shareholder Rights Agreement (or
Common Stock issuable with respect to other securities so purchased), (3) up to
829,901 shares of Common Stock issuable upon exercise of the First Exchange
Option Agreement, dated as of December 31, 1997, by and between the Corporation
and tbg Technologie-Beteiligungs-Gesellschaft mbh der Deutschen Ausgleichsbank,
a German limited liability company, (4) up to an aggregate of 99,012 shares of
Common Stock
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issued upon exercise of certain Stock Purchase Warrants issued on April 28,
1997 to TVM and Alpinvest, and (5) any Common Stock of the Corporation issued as
a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Series A Preferred Stock or Common Stock.
(o) The term "Series B Holder" means any holder of Series B
Registrable Securities.
(p) The term "Series B Preferred Stock" shall mean the
Corporation's Series B Convertible Preferred Stock, par value $.0001 per share.
(q) The term "Series B Registrable Securities" means (1) the
Common Stock issuable upon conversion of the Series B Preferred Stock, (2) any
Common Stock purchased by a Series B Investor (or its permitted transferees)
pursuant to Section 3.1 of the Amended and Restated Shareholder Rights Agreement
(or Common Stock issuable with respect to other securities so purchased), (3) up
to an aggregate of 333,333 shares of Common Stock issued upon exercise of
certain Stock Purchase Warrants issued on August 2000 to TVM Techno Venture
Enterprises No. III Limited Partnership (now known as TVM III Limited
Partnership) ("TVM") and Alpinvest International B.V. ("Alpinvest") and (4) any
Common Stock of the Corporation issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, such Series B Preferred
Stock or Common Stock.
(r) The term "Series C Holder" means any holder of Series C
Registrable Securities.
(s) The term "Series C Preferred Stock" shall mean the
Corporation's Series C Convertible Preferred Stock, par value $.0001 per share.
(t) The term "Series C Registrable Securities" means (1) the
Common Stock issuable upon conversion of the Series C Preferred Stock, (2) any
Common Stock purchased by a Series C Investor (or its permitted transferees)
pursuant to Section 3.1 of the Amended and Restated Shareholder Rights Agreement
(the "Amended and Restated Shareholder Rights Agreement"), dated as of January
28, 2000, by and among the Corporation and the other parties thereto, as amended
and restated effective as of December 28, 2000 (or Common Stock issuable with
respect to other securities so purchased), (3) up to an aggregate of 750,000
shares of Common Stock issuable upon exercise of a certain Stock Purchase
Warrant issued on November 30, 2000 to Private Equity US Direct Finance (which
is now held by Private Equity Direct Finance) and (4) any Common Stock of the
Corporation issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such Series C Preferred Stock or Common
Stock.
(u) The term "Stock Purchase Warrants" means the Warrants as
defined in the Purchase Agreement.
In addition, for purposes of all calculations and notices under this
Agreement, and all other provisions of this Agreement where the context permits,
a holder of Preferred Stock shall be deemed the Holder of the Registrable
Securities issuable upon conversion thereof, and such Preferred Stock shall be
deemed outstanding Registrable Securities hereunder.
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Notwithstanding the foregoing, nothing in this Agreement shall require the
Corporation actually to register any shares of Preferred Stock.
2. Request for Registration.
(a) Series C Requests. If at any time after the earlier to occur
of (i) April 28, 2002 and (ii) the date six months after the closing of the
Corporation's first public offering of securities, the Corporation shall receive
a written request (specifying that it is being made pursuant to this Section
2(a)) from one or more Series C Holders that hold, in the aggregate, at least
twenty-five percent (25%) of the then outstanding Series C Registrable
Securities, that the Corporation file a registration statement under the
Securities Act, or a similar document pursuant to any other statute then in
effect corresponding to the Securities Act, covering the registration of at
least the lesser of (x) at least twenty-five percent (25%) of the then
outstanding Series C Registrable Securities or (y) the Series C Registrable
Securities the expected price to the public of which equals or exceeds
$15,000,000, then the Corporation shall promptly notify all other Series C
Holders of such request and shall use its best efforts to cause all Registrable
Securities that Series C Holders have requested be registered to be registered
under the Securities Act.
Notwithstanding the foregoing, (i) the Corporation shall not be
obligated to effect a registration pursuant to this Section 2(a) during the
period starting with the date sixty (60) days prior to the Corporation's
estimated date of filing of, and ending on a date six (6) months following the
effective date of, a registration statement pertaining to an underwritten public
offering of securities for the account of the Corporation, provided that the
Corporation is actively employing in good faith its best efforts to cause such
registration statement to become effective and that the Corporation's estimate
of the date of filing such registration statement is made in good faith; (ii)
the Corporation shall not be obligated to effect a registration pursuant to this
Section 2(a) within six (6) months after the effective date of a prior
registration under this Section 2(a); (iii) the Corporation shall not be
obligated to effect a registration pursuant to this Section 2(a) within three
(3) months after the effective date of a registration under Sections 2(b) or
(c); (iv) if the Corporation shall furnish to the Series C Holders a certificate
signed by the President of the Corporation stating that in the good faith
judgment of the Board of Directors it would be seriously detrimental to the
Corporation or its shareholders for a registration statement to be filed in the
near future, then the Corporation's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed three (3)
months; and (v) the Corporation may postpone a registration pursuant to this
Section 2(a) for such period of time as may be required to permit the use of
regular audited year-end financial statements with supplemental short period
figures for a period not exceeding six (6) months unless the Series C Holders
agree to bear the costs of any special audit.
The Corporation shall not be obligated to effect more than two (2)
registrations on behalf of the Series C Holders pursuant to this Section 2(a).
(b) Series B Requests. If at any time after the earlier to occur
of (i) April 28, 2002 and (ii) the date six months after the closing of the
Corporation's first public offering of securities, the Corporation shall receive
a written request (specifying that it is being made pursuant to this Section
2(b)) from one or more Series B Holders that hold, in the aggregate, at least
twenty-five percent (25%) of the then outstanding Series B Registrable
Securities, that the
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Corporation file a registration statement under the Securities Act, or a similar
document pursuant to any other statute then in effect corresponding to the
Securities Act, covering the registration of at least the lesser of (x) at least
twenty-five percent (25%) of the then outstanding Series B Registrable
Securities or (y) the Series B Registrable Securities the expected price to the
public of which equals or exceeds $10,000,000, then the Corporation shall
promptly notify all other Series B Holders of such request and shall use its
best efforts to cause all Registrable Securities that Series B Holders have
requested be registered to be registered under the Securities Act.
Notwithstanding the foregoing, (i) the Corporation shall not be
obligated to effect a registration pursuant to this Section 2(b) during the
period starting with the date sixty (60) days prior to the Corporation's
estimated date of filing of, and ending on a date six (6) months following the
effective date of, a registration statement pertaining to an underwritten public
offering of securities for the account of the Corporation, provided that the
Corporation is actively employing in good faith its best efforts to cause such
registration statement to become effective and that the Corporation's estimate
of the date of filing such registration statement is made in good faith; (ii)
the Corporation shall not be obligated to effect a registration pursuant to this
Section 2(b) within six (6) months after the effective date of a prior
registration under this Section 2(b); (iii) the Corporation shall not be
obligated to effect a registration pursuant to this Section 2(b) within three
(3) months after the effective date of a registration under Sections 2(a) or
(c); (iv) if the Corporation shall furnish to the Series B Holders a certificate
signed by the President of the Corporation stating that in the good faith
judgment of the Board of Directors it would be seriously detrimental to the
Corporation or its shareholders for a registration statement to be filed in the
near future, then the Corporation's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed three (3)
months; and (v) the Corporation may postpone a registration pursuant to this
Section 2(b) for such period of time as may be required to permit the use of
regular audited year-end financial statements with supplemental short period
figures for a period not exceeding six (6) months unless the Series B Holders
agree to bear the costs of any special audit.
The Corporation shall not be obligated to effect more than two (2)
registrations on behalf of the Series B Holders pursuant to this Section 2(b).
(c) Series A Requests. If at any time after the earlier to occur
of (i) April 28, 2002 and (ii) the date six months after the closing of the
Corporation's first public offering of securities, the Corporation shall receive
a written request (specifying that it is being made pursuant to this Section
2(c)) from one or more Series A Holders that hold, in the aggregate, at least
fifty percent (50%) of the then outstanding Series A Registrable Securities,
that the Corporation file a registration statement under the Securities Act, or
a similar document pursuant to any other statute then in effect corresponding to
the Securities Act, covering the registration of at least the lesser of (x) at
least twenty-five percent (25%) of the then outstanding Series A Registrable
Securities or (y) the Series A Registrable Securities the expected price to the
public of which equals or exceeds $10,000,000, then the Corporation shall
promptly notify all other Series A Holders of such request and shall use its
best efforts to cause all Registrable Securities that Series A Holders have
requested be registered to be registered under the Securities Act.
Notwithstanding the foregoing, (i) the Corporation shall not be
obligated to effect a registration pursuant to this Section 2(c) during the
period starting with the date sixty (60) days
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prior to the Corporation's estimated date of filing of, and ending on a date six
(6) months following the effective date of, a registration statement pertaining
to an underwritten public offering of securities for the account of the
Corporation, provided that the Corporation is actively employing in good faith
its best efforts to cause such registration statement to become effective and
that the Corporation's estimate of the date of filing such registration
statement is made in good faith; (ii) the Corporation shall not be obligated to
effect a registration pursuant to this Section 2(c) within six (6) months after
the effective date of a prior registration under this Section 2(c); (iii) the
Corporation shall not be obligated to effect a registration pursuant to this
Section 2(c) within three (3) months after the effective date of a registration
under Sections 2(a) or (b); (iv) if the Corporation shall furnish to the Series
A Holders a certificate signed by the President of the Corporation stating that
in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Corporation or its shareholders for a registration statement
to be filed in the near future, then the Corporation's obligation to use its
best efforts to file a registration statement shall be deferred for a period not
to exceed three (3) months; and (v) the Corporation may postpone a registration
pursuant to this Section 2(c) for such period of time as may be required to
permit the use of regular audited year-end financial statements with
supplemental short period figures for a period not exceeding six (6) months
unless the Series A Holders agree to bear the costs of any special audit.
The Corporation shall not be obligated to effect more than two (2)
registrations on behalf of the Series A Holders pursuant to this Section 2(c).
(d) New Warrant Holders' Requests. If at any time after the date
six months after the closing of the Corporation's first public offering of
securities, the Corporation shall receive a written request (specifying that it
is being made pursuant to this Section 2(d)) from one or more New Warrant
Holders that hold, in the aggregate, at least 50% of the then outstanding New
Registrable Securities, that the Corporation file a registration statement under
the Securities Act, or a similar document pursuant to any other statute then in
effect corresponding to the Securities Act, covering the registration of at
least the lesser of (x) at least 25% of the then outstanding New Registrable
Securities or (y) New Registrable Securities the expected price to the public of
which equals or exceeds $10,000,000, then the Corporation shall promptly notify
all other New Warrant Holders of such request and shall use its best efforts to
cause all New Registrable Securities that New Warrant Holders have requested be
registered to be registered under the Securities Act.
Notwithstanding the foregoing, (i) the Corporation shall not be
obligated to effect a registration pursuant to this Section 2(d) during the
period starting with the date 60 days prior to the Corporation's estimated date
of filing of, and ending on a date six months following the effective date of, a
registration statement pertaining to an underwritten public offering of
securities for the account of the Corporation, provided that the Corporation is
actively employing in good faith its best efforts to cause such registration
statement to become effective and that the Corporation's estimate of the date of
filing such registration statement is made in good faith; (ii) the Corporation
shall not be obligated to effect a registration pursuant to this Section 2(d)
within six months after the effective date of a prior registration under this
Section 2(d); (iii) the Corporation shall not be obligated to effect a
registration pursuant to this Section 2(d) within three months after the
effective date of a registration under Sections 2(a), (b), or (c); (iv) if the
Corporation shall furnish to the New Warrant Holders a certificate signed by the
President of the
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Corporation stating that in the good faith judgment of the Board of Directors it
would be seriously detrimental to the Corporation or its shareholders for a
registration statement to be filed in the near future, then the Corporation's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed three months; and (v) the Corporation may
postpone a registration pursuant to this Section 2(d) for such period of time as
may be required to permit the use of regular audited year-end financial
statements with supplemental short-period figures for a period not exceeding six
months unless the New Warrant Holders agree to bear the costs of any special
audit.
The Corporation shall not be obligated to effect more than two (2)
registrations on behalf of the New Warrant Holders pursuant to this Section
2(d).
3. Piggyback Rights.
(a) Corporation Registration. Subject to Section 8 of this
Agreement, if at any time the Corporation proposes to register any of its Common
Stock under the Securities Act in connection with the public offering of such
securities for its own account or for the accounts of shareholders other than
Holders, solely for cash on a form that would also permit the registration of
the Registrable Securities, the Corporation shall, each such time, promptly give
each Holder and the Founders written notice of such determination. Upon the
written request of any Holder or any Founder given within thirty (30) days after
giving of any such notice by the Corporation, the Corporation shall, subject to
the limitations set forth in Section 8(a), use its best efforts to cause to be
registered under the Securities Act all of the Registrable Securities that each
such Holder has requested be registered and all of the Founders' Shares that any
Founder has requested to be registered.
(b) Rights of New Warrant Holders. Subject to Section 8 of this
Agreement, if at any time the Corporation proposes to register any of its Common
Stock under the Securities Act in connection with the public offering of such
securities for the accounts of any of the Series A Holders, Series B Holders, or
Series C Holders (including pursuant to a request made pursuant to Section 3(a)
or 11 of this Agreement), the Corporation shall, each such time, promptly give
each New Warrant Holder written notice of such determination. Upon the written
request of any New Warrant Holder given with thirty (30) days after giving of
any such notice by the Corporation, the Corporation shall, subject to the
limitations set forth in Section 8(a), use its best efforts to cause to be
registered under the Securities Act all of the New Registrable Securities that
each such New Warrant Holder has requested be registered.
4. Obligations of the Corporation. Whenever required under Section 2,
3, or 11 of this Agreement to use its best efforts to effect the registration of
any Registrable Securities, the Corporation shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective until the distribution
thereof has been completed; provided, however, that in connection with any
proposed registration intended to permit an offering of any securities from time
to time (i.e., a so-called "shelf registration"), the Corporation shall in no
event be obligated to cause any such registration to remain effective for more
than one hundred eighty (180) days;
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(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of such Registrable Securities owned by them;
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or "Blue Sky"
laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement, provided
that the Corporation shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and further provided
that (anything in this Agreement to the contrary notwithstanding with respect to
the bearing of expenses) if any jurisdiction in which the securities shall be
qualified shall require that expenses incurred in connection with the
qualification of the securities in that jurisdiction be borne by selling
shareholders, then such expenses shall be payable by selling shareholders pro
rata, to the extent required by such jurisdiction;
(e) Provide a transfer agent for the Common Stock no later than
the effective date of the first registration of any Registrable Securities;
(f) Otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC;
(g) Use its best efforts either (i) to cause all such Registrable
Securities to be listed on a national securities exchange (if such securities
are not already so listed) and on each additional national securities exchange
on which similar securities issued by the Corporation are then listed, if the
listing of such securities is then permitted under the rules of such exchange,
or (ii) to secure designation of all such Registrable Securities as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the SEC
or, failing that, to secure listing on NASDAQ for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two (2) market makers to register as such with respect to Registrable Securities
with the National Association of Securities Dealers;
(h) Enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as the
selling Holders of Registrable Securities shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
(i) Make available for inspection by any selling Holder of
Registrable Securities, by any underwriter participating in any disposition to
be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by any such selling Holder or any such
underwriter, all pertinent financial and other records and pertinent corporate
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documents and properties of the Corporation, and cause all of the Corporation's
officers, directors and employees to supply all information reasonably requested
by any such selling Holder, underwriter, attorney, accountant or agent in
connection with such registration statement;
(j) Use every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of such registration statement or of any
order preventing or suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the lifting thereof at the earliest reasonable
time; and
(k) Make such representations and warranties to the selling
Holders of Registrable Securities and the underwriters as are customarily made
by issuers to selling stockholders and underwriters, as the case may be, in
primary underwritten public offerings.
5. Furnish Information. It shall be a condition precedent to the
obligations of the Corporation to take any action pursuant to this Agreement
with respect to the registration of any Holder's Registrable Securities and any
Founders' Shares that such Holder or Founder shall furnish to the Corporation
such information regarding themselves, the Registrable Securities or Founders'
Shares held by them, and the intended method of disposition of such securities,
as the Corporation shall reasonably request and as shall be required in
connection with the action to be taken by the Corporation.
6. Expenses of Demand Registration. All expenses incurred in connection
with any registration pursuant to Section 2 (excluding underwriters' discounts
and commissions), including, without limitation, all registration and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Corporation, and the reasonable fees and disbursements of one
special counsel for the selling Holders, shall be borne by the Corporation.
7. Corporation Registration Expenses. All expenses (excluding
underwriters' discounts and commissions) incurred in connection with any
registration pursuant to Section 3, including, without limitation, any
additional registration and qualification fees and any additional fees and
disbursements of counsel to the Corporation that result from the inclusion of
securities held by the selling Holders or Founders in such registration and the
reasonable fees and disbursements of one special counsel for the selling Holders
or Founders, shall be borne by the Corporation; provided, however, that if the
registration is exclusively for the account of selling shareholders and does not
include any securities to be sold for the account of the Corporation, the
selling Holders or Founders shall bear their proportionate share of the expenses
incurred in connection with such registration (provided all shareholders
registering shares thereunder bear their proportionate share of such expenses),
except expenses which the Corporation would have incurred whether or not the
securities held by the selling Holders or Founders were included in such
registration (including, without limitation, the expense of preparing normal
audited or unaudited financial statements).
8. Underwriting Requirements.
(a) In connection with any offering under Section 3 involving an
underwriting of shares being issued by the Corporation, the Corporation shall
not be required to include any Holder's Registrable Securities or any Founders'
Shares in such underwriting unless such Holder
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or Founder accepts the terms of the underwriting as agreed upon between the
Corporation and the underwriters selected by it, and then only in such quantity
as will not, in the reasonable opinion of the underwriters, jeopardize the
success of the offering by the Corporation. If the total amount of securities
that all Holders and Founders request to be included in an underwritten offering
under Section 3 exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, no Founders'
Shares and no other securities of any shareholder except Registrable Securities
of Holders shall be included in such offering unless all Registrable Securities
which the Holders have requested to be included are included, and the
Corporation shall only be required to include in the offering so many of the
Registrable Securities of the Holders as the underwriters reasonably believe
will not jeopardize the success of the offering (the Registrable Securities so
included to be apportioned pro rata among the selling Holders according to the
total amount of Registrable Securities owned by such selling Holders, or in such
other proportions as shall mutually be agreed to by such selling Holders).
(b) With respect to any underwriting of shares to be registered
under Section 2, or any underwriting of shares to be registered under Section
11, the selling Holders who initiate the request for registration shall have the
right to designate the managing underwriter or underwriters, subject to the
consent of the Corporation. In connection with any underwritings of shares to be
registered under Section 3, the Corporation shall have the right to designate
the managing underwriter or underwriters, subject to the consent of the Holders
of a majority of the Registrable Securities participating in the underwriting.
In any such case, such consent shall not be unreasonably withheld or delayed.
9. Delay of Registration. No Holder or Founder shall have any right to
take any action to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. Indemnification. In the event any Registrable Securities are included
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Corporation will indemnify
and hold harmless each Holder requesting or joining in a registration, any
underwriter (as defined in the Securities Act) for it, and each person, if any,
who controls any such Holder or 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 on any untrue or alleged untrue statement of any
material fact contained in such registration statement, including, without
limitation, 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 therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading or
arise out of any violation by the Corporation of any rule or regulation
promulgated under the Securities Act applicable to the Corporation and relating
to action or inaction required of the Corporation in connection with any such
registration; and will reimburse each such Holder, such underwriter, 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, provided, however, that the indemnity agreement contained
in this Section 10(a) shall not apply to amounts paid in
10
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Corporation (which consent
shall not be unreasonably withheld or delayed) nor shall the Corporation be
liable in any such case for 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 or alleged 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
any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each Holder and each Founder
requesting or joining in a registration will indemnify and hold harmless the
Corporation, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Corporation within
the meaning of the Securities Act, and any underwriter for the Corporation
(within the meaning of the Securities Act) against any losses, claims, damages
or liabilities to which the Corporation or any such director, officer,
controlling person or underwriter may become subject, 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 statement 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 therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary prospectus or final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished by such Holder or Founder expressly for use in
connection with such registration; and will reimburse the Corporation or any
such director, officer, controlling person or underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 10(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 such Holder or Founder
(which consent shall not be unreasonably withheld or delayed) and provided
further that no Holder or Founder shall have any liability under this Section
10(b) in excess of the net proceeds after tax actually received by such Holder
or Founder in the relevant public offering.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 10, 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 so desires, jointly
with any other indemnifying party similarly noticed, to assume 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 his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
10, but the omission so to notify the indemnifying party will not relieve him of
any liability that he may have to any indemnified party otherwise than under
this Section 10.
11
(d) If the indemnification provided for in this Section 10 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under Section 10(a)
or 10(b) in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then each applicable indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of any losses,
claims, damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Corporation, the Holders and the Founders from the offering of securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Corporation, the Holders and the Founders in connection with the statements
or omissions described in such Section 10(a) or 10(b) which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The respective relative benefits received by the
Corporation, the Holders and the Founders shall be deemed to be in the same
proportion as the total price paid to the Corporation, the Holders and the
Founders, respectively, for the securities sold by them in the offering. The
relative fault of the Corporation, the Holders and the Founders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Corporation, the Holders
or the Founders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in this Section 10, any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in Section 10(c) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 10(d); provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under subsection (c) for purposes of indemnification. The
Corporation, the Holders and the Founders agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined solely by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 10(d), no Holder or Founder shall
be required to contribute an amount in excess of the net proceeds after tax
actually received by such Holder or Founder in the relevant public offering. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
11. Registrations on Form S-3.
(a) If (i) the Corporation shall receive a written request
(specifying that it is being made pursuant to this Section 11) from one or more
Holders that hold, in the aggregate, at least twenty-five percent (25%) of the
then outstanding Series A Registrable Securities, Series B Registrable
Securities or Series C Registrable Securities, as applicable, that the
Corporation file a registration statement on Form S-3 (or any successor form to
Form S-3 regardless of its designation) for a public offering of Registrable
Securities the reasonably anticipated aggregate price to the public of which
would equal or exceed Two Hundred Fifty Thousand Dollars ($250,000), and (ii)
the Corporation is a registrant entitled to use Form S-3 to register such
12
shares, then the Corporation shall use its best efforts to cause such shares to
be registered on Form S-3 (or any successor form to Form S-3).
(b) All expenses (excluding underwriters' discounts and commissions)
incurred in connection with the first two (2) registrations requested pursuant
to Section 11(a), including, without limitation, all registration,
qualification, printing, and accounting fees, and fees and disbursements of one
special counsel to the selling Holders and counsel to the Corporation, shall be
borne by the Corporation.
All such expenses for registrations pursuant to Section 11(a) after
the first two such registrations shall be borne by the Corporation, except that
the selling Holders shall pay all fees of their legal counsel, if any, in
connection therewith.
(c) The Holders' rights to registration under this Section 11 are
in addition to, and not in lieu of, their rights to registration under Sections
2 and 3 of this Agreement.
12. Limitation on Corporation Offerings. The Corporation shall not
register securities for sale for its own account (or, except as permitted by
Section 14, any securities other than Registrable Securities) in any
registration requested pursuant to Section 2 or 11 unless permitted to do so by
the written consent of the Holders of more than two-thirds (2/3) of the
Registrable Securities as to which registration has been requested. The
Corporation may not cause any other registration of securities for its own
account (other than a registration effected solely to implement an employee
benefit plan) which would become effective less than six (6) months after the
effective date of any registration requested pursuant to Section 2 or 11 to be
initiated after receiving such request.
13. Reports Under the 1934 Act. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Corporation to the public without registration, the
Corporation agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times subsequent to ninety (90) days
after the effective date of the first registration statement covering an
underwritten public offering filed by the Corporation;
(b) file with the SEC in a timely manner all reports and other
documents required of the Corporation under the Securities Act and the 1934 Act;
and
(c) furnish to any Holder forthwith upon request a written
statement by the Corporation that it has complied with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the effective
date of said first registration statement filed by the Corporation), and of the
Securities Act and the 1934 Act (at any time after it has become subject to such
reporting requirements), a copy of the most recent annual or quarterly report of
the Corporation, and such other reports and documents so filed by the
Corporation as may be reasonably requested in availing any such holder to take
advantage of any rule or regulation of the SEC permitting the selling of any
such securities without registration.
13
14. Limitations in Connection with Future Grants of Registration Rights.
Without the prior written consent of the Holders of at least two-thirds in
voting power of then outstanding Series B Registrable Securities and the then
outstanding Series A Registrable Securities, and the prior written consent of
the Holders of at least sixty percent (60%) in voting power of the then
outstanding Series C Registrable Securities, the Corporation shall not grant
rights to cause the Corporation to register any of its securities to any person
or entity.
15. Transfer of Registration Rights. The registration rights of any
Holder (and of any permitted transferee of any Holder or its permitted
transferees) under this Agreement with respect to any Registrable Securities may
be transferred to any Affiliate of such Holder or such permitted transferee, or
to any transferee who acquires (otherwise than in a registered public offering)
at least five percent (5%) of the Registrable Securities, held by such Holder as
of the date hereof; provided, however, that the Corporation is given written
notice by the Holder at the time of such transfer stating the name and address
of the transferee and identifying the securities with respect to which the
rights under this Agreement are being assigned. For such purpose, an "Affiliate"
of any Holder (or any such transferee) means any general or limited partner of
any Holder (or transferee) that is a partnership, or any person or entity that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Holder or transferee.
16. Mergers, Etc. The Corporation shall not, directly or indirectly,
enter into any merger, consolidation or reorganization in which the Corporation
shall not be the surviving corporation unless the proposed surviving corporation
shall, prior to such merger, consolidation or reorganization, agree in writing
to assume the obligations of the Corporation under this Agreement, and for that
purpose references hereunder to "Registrable Securities" shall be deemed to be
references to the securities which the Holders would be entitled to receive in
exchange for Registrable Securities under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Agreement shall
not apply in the event of any merger, consolidation or reorganization in which
the Corporation is not the surviving corporation if the Holders of Registrable
Securities are entitled to receive in exchange therefor (i) cash, or (ii)
securities of the acquiring corporation which may be immediately sold to the
public without registration under the Securities Act.
17. Stand-Off Agreement. Each Holder and each Founder, if requested by
the Corporation and the managing underwriter of an offering by the Corporation
of Common Stock or other securities of the Corporation pursuant to a
registration statement under the Securities Act, shall agree not to sell
publicly or otherwise transfer or dispose of any Registrable Securities,
Founders' Shares or other securities of the Corporation held by such Holder or
Founder for a specified period of time (not to exceed 180 days) following the
effective date of such registration statement; provided, that:
(a) such agreement shall apply only to the first registration
statement covering Common Stock or other securities to be sold on the
Corporation's behalf to the public in an underwritten offering; and
(b) all persons who hold shares of Common Stock, or securities
convertible into or exchangeable or exercisable for shares of Common Stock,
which in the aggregate
14
represent one percent (1%) or more of the shares of Common Stock then
outstanding, and all officers and directors of the Corporation, enter into
agreements in the same terms.
The covenant contained in this Section 17 is in addition to any
market stand-off covenant contained in any other agreement between the
Corporation and any Holder or Founder.
18. Notices. All notices, requests, consents and other communications
hereunder ("NOTICES") to any party shall be contained in a written instrument
addressed to such party at the address set forth below or such other address as
may hereafter be designated in writing by the addressee to the addressor listing
all parties and shall be deemed given (a) when delivered in person or duly sent
by fax showing confirmation of receipt, (b) three days after being duly sent by
first class mail postage prepaid (other than in the case of Notices to or from
any non-U.S. resident, which Notices must be sent in the manner specified in
clause (a) or (c)), or (c) two days after being duly sent by DHL, Federal
Express or other recognized express international courier service:
(a) if to the Corporation, to:
EpiCept Corporation
270 Sylvan Avenue
Englewood Cliffs, NJ 07632
Attention: Chief Executive Officer
Fax: (201) 894-8980
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attn: Alexander D. Lynch, Esq.
Fax: (212) 310-8007
(b) if to the Series C Investors, to their respective addresses
set forth on the signature pages of the Series C Convertible Preferred Stock
Purchase Agreement, or, in the case of persons or entities becoming parties
hereto in accordance with Section 21(c), to their respective addresses set forth
on the signature page hereto with a copy to:
McGrigors
5 Old Bailey
London EC4M 7BA
Attn: Mr. Patrick Martin
Fax: 011-44-207-054-2501
(c) if to the Series B Investors, to their respective addresses
set forth on the signature pages of the Series B Convertible Preferred Stock
Purchase Agreement dated as of January 28, 1999 (the "Series B Stock Purchase
Agreement"), or, in the case of persons or
15
entities becoming parties hereto in accordance with Section 21(b), to their
respective addresses set forth on the signature page hereto, with a copy to:
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Attn: David R. Pierson, Esq.
Fax: (617) 832-7000
(d) if to the Series A Investors, to their respective addresses
set forth on the signature pages of the Series A Convertible Preferred Stock
Purchase Agreement dated as of April 28, 1997, or, in the case of persons or
entities becoming parties hereto in accordance with Section 21(a), to their
respective addresses set forth on the signature page hereto, with a copy to:
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Attn: David R. Pierson, Esq.
Fax: (617) 832-7000
(e) if to the New Warrant Holders, to their respective addresses
set forth on the signature pages of the Purchase Agreement, or, in the case of
persons or entities becoming parties hereto in accordance with Section 21(a), to
their respective addresses set forth on the signature page hereto;
(f) if to the Founders, to their addresses set forth on the
signature page to the Amended and Restated Registration Rights Agreement dated
as of January 28, 2000.
19. Miscellaneous.
(a) This Agreement states the entire agreement of the parties
concerning the subject matter hereof, and supersedes all prior agreements,
written or oral, between or among them concerning such subject matter.
(b) This Agreement may be amended, and compliance with any
provision of this Agreement may be omitted or waived, only by the written
agreement of the Corporation, the Holders of at least sixty percent (60%) in
voting power of the then outstanding Series C Registrable Securities, the
Holders of at least two-thirds in voting power of the then outstanding Series B
Registrable Securities, and the Holders of at least two-thirds in voting power
of the then outstanding Series A Registrable Securities and the holders of a
majority of the New Registrable Securities.
(c) This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Delaware,
without regard to its principles of conflicts of laws.
(d) This Agreement may be executed in any number of counterparts,
each such counterpart shall be deemed to be an original instrument, and all such
counterparts together
16
shall constitute but one agreement. Any such counterpart may contain one or more
signature pages.
20. Effect on First Amendment. This Agreement shall supersede the First
Amendment, which shall be of no further force or effect.
21. Accession.
(a) tbg-Technologie-Beteiligungsgesellschaft mbH der Deutschen
Ausgleichsbank, if it becomes a holder of Series A Preferred Stock or Series A
Registrable Securities, shall automatically become a party to this Agreement by
executing and delivering to the Corporation a counterpart signature page to this
Agreement in the form of Exhibit A hereto, and shall thereupon be deemed a
"Series A Investor" for all purposes of this Agreement.
(b) Any Additional Investor as defined in the Series B Stock
Purchase Agreement and IKB Beteiligungsgesellschaft mbH, if it becomes a holder
of Series B Preferred Stock, shall automatically become a party to this
Agreement by executing and delivering to the Corporation a counterpart signature
page to this Agreement in the form of Exhibit B hereto, and shall thereupon be
deemed a "Series B Investor" for all purposes of this Agreement.
(c) Any Additional Investor as defined in the Stock Purchase
Agreement, if it becomes a holder of Series C Preferred Stock, shall
automatically become a party to this Agreement by executing and delivering to
the Corporation a counterpart signature page to this Agreement in the form of
Exhibit C hereto, and shall thereupon be deemed a "Series C Investor" for all
purposes of this Agreement.
[remainder of page intentionally left blank]
17
IN WITNESS WHEREOF, the Investors, the Founders and the Corporation
have executed this Second Amended and Restated Registration Rights Agreement as
of the date first written above.
EPICEPT CORPORATION
By:
______________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series A Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: TVM III LIMITED PARTNERSHIP
By: TVM Techno Venture Management No.
III Limited Partnership,
its General Partner
By: TVM Management Corporation, its
General Partner
By:
____________________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: ALPINVEST PARTNERS N.V.
By:____________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series A Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
______________________
Name: Gerhard Waldheim
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series A Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
___________________
Name: Hans Dichand
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series A Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: PHARMED HOLDING GMBH
By:_____________________
Dr.Rainer K. Liedtke
President
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: TVM III LIMITED PARTNERSHIP
By: TVM Techno Venture Management
No. III Limited Partnership, its
General Partner
By: TVM Management Corporation, its
General Partner
By:_________________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: ALPINVEST PARTNERS N.V.
By:____________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
________________________
Name: Friedrich Dieckell
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
____________________
Name: Claus Dieckell
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
______________________
Name: Michael Dieckell
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
______________________
Name: Hellmut Kirchner
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: KB LUX VENTURE CAPITAL FUND
By:________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: IKB PRIVATE EQUITY GMBH
By:____________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
____________________
Name: Erik Hornnaess
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
___________________
Name: Vivian W. Day
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
_____________________________
Name: Dr. Ernst-Gunter Afting
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: TVM IV GMBH & CO. KG
By:_________________
Name:
Title:
By:_________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: KB LUX VENTURE CAPITAL FUND
By:________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: ALPINVEST PARTNERS N.V.
By:____________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: GZ PAUL PARTNERS B.V.
By:__________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
__________________
Name: Hans Dichand
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address:
_______________________
Name: Gerhard Waldheim
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: PRIVATE EQUITY DIRECT FINANCE
By:__________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: THE MERLIN BIOSCIENCES FUND
L.P.
By: Merlin General Partner II Limited, its
General Partner
By:________________________________________
Name:
Title:
Address: THE MERLIN BIOSCIENCES FUND
GBR
By: Merlin General Partner II Limited, its
General Partner
By:________________________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Founder Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is a "Founder" as defined in the Second Amended and Restated
Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
_________________
Rainer K. Liedtke
_________________
Hanne Liedtke
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
New Warrant Holder Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: THE MERLIN BIOSCIENCES FUND L.P.
By: Merlin General Partner II Limited, its General
Partner
By:_____________________________
Name:
Title:
Address: THE MERLIN BIOSCIENCES FUND
GBR
By: Merlin General Partner II Limited, its General
Partner
By:_______________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
New Warrant Holder Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: PRIVATE EQUITY DIRECT FINANCE
By:__________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
New Warrant Holder Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: TVM IV GMBH & CO. KG
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
New Warrant Holder Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is an "Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March 3, 2005, among EpiCept
Corporation and the "Investors" and "Founders" as defined therein, (ii) that it
is a party to the Second Amended and Restated Registration Rights Agreement for
all purposes and (iii) that it is bound by all terms and conditions of the
Second Amended and Restated Registration Rights Agreement.
EXECUTED this 3rd day of March, 2005.
Address: SANDERS OPPORTUNITY FUND, L.P.
By: SOF Management, LLC
c/o Sanders Morris Harris
600 Travis Street By:_______________________
3100 Chase Tower Name:
Houston, TX 77002 Title:
Address: SANDERS OPPORTUNITY FUND
(INSTITUTIONAL), L.P.
By: SOF Management, LLC
c/o Sanders Morris Harris
600 Travis Street By:________________________
3100 Chase Tower Name:
Houston, TX 77002 Title:
EXHIBIT A
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Additional Series A Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is a "Series A Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March [ ], 2005, among
EpiCept Corporation and the "Investors" and "Founders" as defined therein, (ii)
that it is a party to the Second Amended and Restated Registration Rights
Agreement for all purposes and (iii) that it is bound by all terms and
conditions of the Second Amended and Restated Registration Rights Agreement.
EXECUTED this __ day of ___________, 200_.
________________________________________________
(print name)
By:_____________________________________________
Title:__________________________________________
Address:________________________________________
________________________________________________
________________________________________________
EXHIBIT B
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Additional Series B Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is a "Series B Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March [ ], 2005, among
EpiCept Corporation and the "Investors" and "Founders" as defined therein, (ii)
that it is a party to the Second Amended and Restated Registration Rights
Agreement for all purposes and (iii) that it is bound by all terms and
conditions of the Second Amended and Restated Registration Rights Agreement.
EXECUTED this __ day of ___________, 200_.
_______________________________________________
(print name)
By:____________________________________________
Title:_________________________________________
Address:_______________________________________
_______________________________________________
______________________________________________
EXHIBIT C
EPICEPT CORPORATION
Second Amended and Restated Registration Rights Agreement
Additional Series C Investor Signature Page
By executing this page in the space provided, the undersigned hereby
agrees (i) that it is a "Series C Investor" as defined in the Second Amended and
Restated Registration Rights Agreement, dated as of March [ ], 2005, among
EpiCept Corporation and the "Investors" and "Founders" as defined therein, (ii)
that it is a party to the Second Amended and Restated Registration Rights
Agreement for all purposes and (iii) that it is bound by all terms and
conditions of the Second Amended and Restated Registration Rights Agreement.
EXECUTED this __ day of ___________, 200_.
_______________________________________________
(print name)
By:____________________________________________
Title:_________________________________________
Address:_______________________________________
_______________________________________________
______________________________________________
Schedule A
Series A Investors
TVM III Limited Partnership
Alpinvest International B.V.
Gerhard Waldheim
Hans Dichand
Pharmed Dr. Liedtke GmbH
Schedule B
Series B Investors
TVM III Limited Partnership
Alpinvest International B.V.
Friedrich Dieckell
Claus Dieckell
Michael Dieckell
Hellmut Kirchner
KB Lux Venture Capital Fund
IKB Beteiligungsgesellschaft mbH
EpiCept GmbH
Erik Hornnaess
Vivian W. Day
Dr. Ernst-Gunter Afting
Schedule C
Schedule C Investors
TVM IV GmbH & Co. KG
KB Lux Venture Capital Fund
Alpinvest International B. V.
Gold Zack
Hans Dichand
Dr. Gerhard Waldheim
Private Equity Direct Finance
John Lucas
Merlin General Partner II Limited (in its capacities as general partner of The
Merlin Biosciences Fund L.P. and as managing partner of The
Merlin Biosciences Fund GbR)
Schedule D
New Warrant Holders
Private Equity Direct Finance
TVM IV GMBH & CO. KG
[Sanders Investors]
[Merlin Investors]