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EXHIBIT 2.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
December 15, 2000 by and between United Therapeutics Corporation, a Delaware
corporation, with headquarters located at 1110 Spring Street, Silver Spring,
Maryland 20910 ("UTC"), and Cooke Pharma, Inc. a California corporation, with
headquarters located at 1404 Old County Road, Belmont, California 94002
("Cooke").
WHEREAS:
A. In connection with the Asset Purchase Agreement by and among
the parties and UP Subsidiary Corporation, a Delaware corporation and a
subsidiary of UTC of even date herewith (the "Asset Purchase Agreement"), UTC
has agreed, upon the terms and subject to the conditions contained therein, to
issue and sell to Cooke 294,635 shares of its common stock, par value $.01 per
share (the "Common Stock"); and
B. To induce Cooke to execute and deliver the Asset Purchase
Agreement, UTC has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
or any similar successor statute (collectively, the "1933 Act"), and
applicable state securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, UTC and Cooke hereby
agree as follows:
1. DEFINITIONS.
a. As used in this Agreement, the following terms shall
have the following meanings:
(i) "Initial Registrable Securities" means the
147,317 shares of Common Stock delivered to Cooke at the Closing in accordance
with the terms of the Asset Purchase Agreement.
(ii) "register," "registered," and "registration"
refer to a registration effected by preparing and filing a Registration
Statement or Statements in compliance with the 1933 Act and pursuant to Rule
415 under the 1933 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 "SEC").
(iii) "Registrable Securities" means Initial
Registrable Securities and Subsequent Registrable Securities, collectively.
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(iv) "Registration Statement" means a registration
statement of UTC under the 1933 Act.
(v) "Subsequent Registrable Securities" means all or
any portion of the 147,138 shares of Common Stock delivered to the Escrow
Agent at Closing in accordance with the terms of the Asset Purchase Agreement
which are subsequently released and delivered to Cooke in accordance with the
terms of the Escrow Agreement (the "Escrow Shares"), together with any shares
of Common Stock issued to Cooke in accordance with Section 1.5(i) of the Asset
Purchase Agreement (the "Adjustment Shares").
b. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Asset Purchase
Agreement.
2. REGISTRATION.
a. Mandatory Registration. UTC shall prepare and, on or
prior to the date which is ninety (90) days after the Closing Date as defined
in the Asset Purchase Agreement (the "Closing Date"), file with the SEC a
Registration Statement on Form S-3 (or, if Form S-3 is not then available, on
such form of Registration Statement as is then available to effect a
registration of the Initial Registrable Securities) covering the resale of the
Initial Registrable Securities. The Registration Statement (and each amendment
or supplement thereto, and each request for acceleration of effectiveness
thereof) shall be provided to Cooke and its counsel prior to its filing or
other submission.
UTC shall prepare and, on or prior to the date which is
ninety (90) days following (i) with respect to Escrow Shares described in
Sections 4(a) and 4(b) of the Escrow Agreement, the delivery of the shares to
Cooke pursuant to the terms of the Escrow Agreement, (ii) with respect to
Escrow Shares described in Section 4(c) of the Escrow Agreement, the delivery
of the shares to Cooke pursuant to the terms of the Escrow Agreement, (iii)
with respect to Adjustment Shares, delivery of the Adjustment Shares to Cooke
in accordance with the terms of the Asset Purchase Agreement, and (iv) with
respect to the Escrow Shares described in Section 5 of the Escrow Agreement,
the delivery of the shares to Cooke pursuant to the terms of the Escrow
Agreement (each, "Balance Date"), file with the SEC a Registration Statement
on Form S-3 (or, if Form S-3 is not then available, on such form of
Registration Statement as is then available to effect a registration for
resale of the Subsequent Registrable Securities) covering the resale of the
respective Subsequent Registrable Securities. The Registration Statements (and
each amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided to Cooke and its counsel prior to its
filing or other submission. The provisions of Section 2(b) shall be applicable
with respect to each Registration Statement filed pursuant to this Section
2(a).
b. Effectiveness. UTC shall use its best efforts to obtain
effectiveness of the Registration Statements as soon as practicable.
c. Eligibility for Form S-3. UTC represents and warrants
that it currently meets the requirements for the use of Form S-3 for
registration of the sale by Cooke of the
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Registrable Securities, and UTC shall file all reports required to be filed by
UTC with the SEC in a timely manner so as to maintain such eligibility for the
use of Form S-3.
3. OBLIGATIONS OF UTC.
In connection with the registration of the Registrable Securities, UTC
shall have the following obligations:
a. UTC shall use reasonable efforts to cause the
Registration Statements to become effective as soon as possible after such
filing, and keep the Registration Statements effective pursuant to Rule 415 at
all times until the earlier of (i) the date on which all of the Registrable
Securities covered by such Registration Statement have been sold and (ii) the
date which is one year following the date such Registration Statement is
declared effective by the SEC (the "Registration Period").
b. UTC shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration
Statement as may be necessary to keep the Registration Statement effective at
all times during the Registration Period and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition of all
Registrable Securities covered by the Registration Statements.
c. UTC shall furnish to Cooke and its legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by UTC, one copy of the Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each
amendment or supplement thereto, and, in the case of the Registration
Statements referred to in Section 2(a), each letter written by or on behalf of
UTC to the SEC or the staff of the SEC, and each item of correspondence from
the SEC or the staff of the SEC, in each case relating to such Registration
Statement (other than any portion of any thereof which contains information
for which UTC has sought confidential treatment), and (ii) such number of
copies of a prospectus, including a preliminary prospectus, and all amendments
and supplements thereto and such other documents as Cooke may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by Cooke.
d. UTC shall use reasonable efforts to register and qualify
the Registrable Securities covered by the Registration Statements under such
other securities or "blue sky" laws of such jurisdictions in the United States
as may be necessary to permit sale of the Registrable Securities as
contemplated by the Registration Statement, provided, however, that UTC shall
not be required in connection therewith or as a condition thereto to (a)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (b) subject itself to general
taxation in any such jurisdiction, (c) file a general consent to service of
process in any such jurisdiction, (d) provide any undertakings that cause UTC
undue expense or burden, or (e) make any change in its charter or bylaws,
which in each case the Board of Directors of UTC determines to be contrary to
the best interests of UTC and its stockholders.
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e. As promptly as practicable after becoming aware of such
event, UTC shall notify Cooke of the happening of any event, of which UTC has
knowledge, as a result of which the prospectus included in the 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, and use reasonable efforts
promptly to prepare a supplement or amendment to the Registration Statement to
correct such untrue statement or omission, and deliver such number of copies
of such supplement or amendment to Cooke as it may reasonably request.
f. UTC shall use reasonable efforts to prevent the issuance
of any stop order or other suspension of effectiveness of a Registration
Statement, and, if such an order is issued, to obtain the withdrawal of such
order as soon as reasonably practicable and to notify Cooke of the issuance of
such order and the resolution thereof.
g. UTC shall permit a single firm of counsel designated by
Cooke to review the Registration Statement and all amendments and supplements
thereto prior to their filing with the SEC, and not file any document in a
form to which such counsel reasonably objects.
h. UTC shall use reasonable efforts to secure the
designation and quotation of the Registrable Securities covered by the
Registration Statements on the Nasdaq National Market System.
4. OBLIGATIONS OF COOKE.
In connection with the registration of the Registrable Securities,
Cooke shall have the following obligations:
a. It shall be a condition precedent to the obligations of
UTC to complete the registration pursuant to this Agreement that Cooke shall
furnish to UTC 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 shall execute such documents
in connection with such registration as UTC may reasonably request.
b. By Cooke's acceptance of the Registrable Securities,
Cooke agrees to cooperate with UTC as reasonably requested by UTC in
connection with the preparation and filing of the Registration Statements
hereunder, unless Cooke has notified UTC in writing of Cooke's election to
exclude all of its Registrable Securities from the Registration Statement.
c. Cooke agrees that, upon receipt of any notice from UTC
of the happening of any event of the kind described in Section 3(e) or 3(f),
Cooke will immediately discontinue disposition of the Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until Cooke's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3(e) or 3(g) and, if so directed by UTC, Cooke shall
deliver to UTC (at the expense of UTC) or destroy (and deliver to UTC a
certificate of destruction) all copies
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in Cooke's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than commissions and fees and
disbursements of counsel for Cooke, incurred in connection with registrations,
filings or qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees, printers and
accounting fees, and the fees and disbursements of counsel for UTC, shall be
borne by UTC.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, UTC will indemnify, hold
harmless and defend (i) Cooke and (ii) the affiliates, directors, officers,
partners, employees, agents and each person who controls Cooke within the
meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended
(the "1934 Act"), if any (each, an "Indemnified Person"), against any joint or
several losses, claims, damages, liabilities or expenses (collectively,
together with actions, proceedings or inquiries by any regulatory or
self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the
omission or alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein 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 UTC files any amendment thereof or supplement thereto with
the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading, or
(iii) any violation or alleged violation by UTC of the 1933 Act, the 1934 Act,
any other law, including, without limitation, any state securities law, or any
rule or regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
6(c) with respect to the number of legal counsel, UTC shall reimburse Cooke
and each such controlling person, promptly as such expenses are incurred and
are due and payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not apply
to a Claim arising out of or based upon a Violation which occurs in reliance
upon and in conformity with information furnished in writing to UTC by any
Indemnified Person for such Indemnified Person expressly for use in connection
with the preparation of the Registration Statement or any such amendment
thereof or supplement thereto; (ii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of UTC; and (iii) with respect to any preliminary prospectus,
shall not inure to the benefit of any
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Indemnified Person if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis in the
prospectus, as then amended or supplemented, such corrected prospectus was
timely made available by UTC, and the Indemnified Person was promptly advised
in writing not to use the incorrect prospectus prior to the use giving rise to
a Violation and such Indemnified Person, notwithstanding such advise, used it.
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 Cooke pursuant to Section 8.
b. In connection with any Registration Statement, Cooke
agrees severally and not jointly to indemnify, hold harmless and defend, to
the same extent and in the same manner set forth in Section 6(a), UTC, each of
its directors, each of its officers who signs the Registration Statement, each
person, if any, who controls UTC within the meaning of the 1933 Act or the
1934 Act, and any stockholder selling securities pursuant to the Registration
Statement or any of its directors or officers or any person who controls such
stockholder within the meaning of the 1933 Act or the 1934 Act (collectively
and together with an Indemnified Person, an "Indemnified Party"), against any
Claim to which any of them may become subject, under the 1933 Act, the 1934
Act or otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to UTC by Cooke expressly for use in connection with such
Registration Statement; and subject to Section 6(c) Cooke will reimburse any
legal or other expenses (promptly as such expenses are incurred and are due
and payable) reasonably incurred by them in connection with investigating or
defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 6(b) shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without the prior written consent
of Cooke, 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 such Indemnified Party and shall survive the transfer of the
Registrable Securities by Cooke pursuant to Section 8. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(b) with respect to any preliminary prospectus
shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected on a timely basis in the prospectus, as then amended or
supplemented.
c. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action (including any governmental action), such Indemnified Person or
Indemnified Party 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 the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to
assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Indemnified Person or the Indemnified Party, as
the case may be; provided, however, that an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the 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 or Indemnified Party and the indemnifying
party would be inappropriate due to
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actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. The indemnifying party shall pay for only one separate legal
counsel for the Indemnified Persons or the Indemnified Parties, as applicable,
and such legal counsel shall be selected by Cooke if Cooke is entitled to
indemnification hereunder, or UTC, if UTC is entitled to indemnification
hereunder, as applicable. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend 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.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise
be liable under Section 6 to the fullest extent permitted by law; provided,
however, that (i) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in Section 6, and (ii) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation.
8. AMENDMENT OF REGISTRATION RIGHTS.
Provisions 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 written consent of UTC and Cooke
(to the extent Cooke still owns Registrable Securities). Any amendment or
waiver effected in accordance with this Section 8 shall be binding upon Cooke
and UTC.
9. 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. If UTC receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, UTC shall act upon the basis of instructions, notice
or election received from the registered owner of such Registrable Securities.
b. Notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be sufficiently given when
personally delivered (by hand, by courier, by
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telephone line facsimile transmission or other means) or which receipt is
refused if delivered by hand or by courier or sent by certified mail, return
receipt requested, properly addressed and with proper postage pre-paid,
if to UTC:
United Therapeutics Corporation
1110 Spring Street
Silver Spring, MD 20910
Attention: Martine A. Rothblatt
Chairman and CEO
with copy to:
Bryan Cave LLP
700 13th Street N.W.
Suite 700
Washington DC 20005
Attention: LaDawn Naegle
or, in the case of Cooke, at such address as indicated on the Asset Purchase
Agreement, or at such other address as each such party furnishes by notice
given in accordance with this Section 9(b), and shall be effective, when
personally delivered, upon receipt and, when so sent by certified mail, four
days after deposit with the United States Postal Service.
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 enforced, governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State. In the event
that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof
which may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision hereof. The parties hereto
hereby submit to the exclusive jurisdiction of the United States Federal
Courts located in the State of Maryland with respect to any dispute arising
under this Agreement or the transactions contemplated hereby.
e. This Agreement and the Asset Purchase Agreement
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein and therein. This Agreement
and the Asset Purchase
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Agreement supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
f. This Agreement shall inure to the benefit of and be
binding upon the successors and permissible assigns of each of the parties
hereto.
g. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a
party, may be delivered to the other party hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
i. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions
contemplated hereby.
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IN WITNESS WHEREOF, UTC and Cooke have caused this Agreement to be
duly executed as of the date first above written.
UNITED THERAPEUTICS CORPORATION
By: /s/ Martine A. Rothblatt
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Name: Martine A. Rothblatt
Its: Chairman and CEO
COOKE PHARMA, INC.
By: /s/ John Cooke
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Name: John Cooke
Its: Chairman
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