EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This Agreement for Provision of Registration Rights (the" Agreement")
is executed as of this 24th day of August, 1995 by BioNumerik Pharmaceuticals,
Inc., a Texas corporation (the "Company").
WITNESSETH:
WHEREAS, the persons identified on Schedule A hereto (the "Purchasers")
have agreed to purchase shares of the Company's Preferred Stock (as defined
herein) with the understanding that the Company would grant certain registration
rights to the Purchasers.
NOW, THEREFORE, the Company grants the registration rights contained
herein to the Purchasers, subject to the terms and conditions contained herein:
1. Certain Definitions. As used in this Agreement the following terms
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, par value $.01 per share, of the
Company.
"Conversion Shares" means the shares of Common Stock issued and
issuable upon conversion of the Preferred Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Holders" means the Purchasers and any holder of Registrable Securities
to whom the registration rights conferred by this Agreement have been
transferred in compliance with Section 2.10 hereof.
"Initiating Holders" means any Holder or Holders who in the aggregate
hold more than fifty percent (50%) of the then-outstanding Registrable
Securities, but no less than the number of Registrable Securities issued or
issuable upon conversion of twenty percent (20%) of the total number of shares
of Preferred Stock issued by the Company to all Purchasers.
"Preferred Stock" means the Series C Convertible Preferred Stock, par
value $.01 per share, of the Company.
"Registrable Securities" means (i) the Conversion Shares and (ii) any
Common Stock issued as a dividend or other distribution with respect to or in
exchange for or in replacement of the Conversion Shares or Preferred Stock,
provide, however, that Registrable Securities shall not include any shares of
Common Stock which have previously been registered or which have been sold
pursuant to Rule 144.
The term "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 the
effectiveness of such registration statement.
"Rule 144" means Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"Series A Persons" means those persons entitled to registration rights
pursuant to Section 10 of the Preferred Stock Purchase Agreement dated February
19, 1993 between BioNumerik Pharmaceuticals, Inc., a Delaware corporation and
predecessor by merger to the Company ("BioNumerik Delaware"), and certain
purchasers of its securities, as amended.
"Series B Persons" means those persons entitled to registration rights
pursuant to that certain Registration Rights Agreement (the "Series B
Registration Rights Agreement") dated as of August 8, 1994 and relating to
registration rights granted by BioNumerik Delaware to purchasers of its Series B
Convertible Preferred Stock.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
For purposes of the definitions of "Holder" and "Initiating Holders"
above, holders of Preferred Stock shall be deemed to be the holders of
Registrable Securities issuable upon conversion thereof; and for the purpose of
calculating any percentage of Registrable Securities, the calculation shall be
made as if the Preferred Stock had been fully converted.
2. Registration of Registrable Securities.
2.1 Registration on Request.
(a) Request. Subject to the limitations provided herein,
commencing on January 31, 1998, or on the first anniversary of the effective
date of the Company's first registration statement under the Securities Act,
whichever shall first occur, until the fifth anniversary of the effective date
of the Company's first registration statement under the Securities Act. upon the
written request (specifying that it is being made pursuant to this Section 2.1)
of the Initiating Holders requesting that the Company effect the registration
under the Securities Act of at least fifty percent (50%) of the then-outstanding
Registrable Securities. but no less than the number of Registrable Securities
issued or issuable upon conversion of twenty percent 20% of the total number of
shares of Preferred Stock issued by the Company to all Purchasers, and
specifying (x) the intended method of disposition thereof, (y) whether or not
such requested registration is to be an underwritten offering, and (z) the price
range (net I)f underwriting discounts and commissions) acceptable to such Holder
or Holders to be received for such Registrable Securities, the Company will
within 10 business days after the Company receives such written request give
written notice of such requested registration to all other Holders of
Registrable
Securities and thereupon the Company will use reasonable efforts to effect the
registration under the Securities Act of: .
(i) the Registrable Securities which the Company has been
so requested to register by such Initiating Holders, and
(ii) all other Registrable Securities which the Company
has been requested to register by the other Holders thereof by written
request given to the Company within 15 days after the giving of such
written notice by the Company (which request shall specify the same
information called for by the original request to effect registration
described above), all to the extent requisite to permit the disposition
(in accordance with Section 2.1(b) hereof) of the Registrable
Securities so to be registered.
(b) Method of Distribution. The Holders of 51% of the Registrable
Securities to be included in such registration statement shall determine the
method of distribution of the Registrable Securities so included; provided,
however, that if no agreement of Holders of 51% or more of the Registrable
Securities to be included in such registration statement is obtained, then if
Holders of more than 30% of the Registrable Securities to be included in such
registration statement request an underwritten public offering, an underwritten
public offering shall be the method of distribution with other methods permitted
to the extent the managing underwriter for such offering, in its sole
discretion, agrees to other methods of distribution being covered by such
registration statement.
(c) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering, no securities other than Registrable Securities shall be
included among the securities covered by such registration unless (i) the
managing underwriter of such offering shall have advised each Holder of
Registrable Securities to be covered by such registration in writing that the
inclusion of such other securities would not adversely affect such offering or
(ii) the Holders of more than 51 % or more of all Registrable Securities to be
covered by such registration shall have consented in writing to the inclusion of
such other securities; provided, however, that the rights of Holders hereunder
shall be subject to (A) the prior right of Series A Persons requesting
registration (whether pursuant to "demand" or "piggyback" registration rights)
to include all of the securities requested to be registered by such Series A
Persons in such registration, and (B) the .concurrent right of Series B Persons
requesting registration pursuant to the Series B Registration Rights Agreement
(whether pursuant to "demand" or "piggyback" registration rights) to include
securities in such registration on a pro rata basis with the Registrable
Securities of Holders to be included in such registration, so that (I) the ratio
of (w) the amount of securities held by Series B Persons and included in such
registration pursuant to the Series B Registration Rights Agreement to (x) the
amount of Registrable Securities of Holders included in such registration, shall
equal (II) the ratio of (y) the total amount of securities held by Series B
Persons and requested to be included in such registration pursuant to the Series
B Registration Rights Agreement to (z) the total amount of Registrable
Securities of Holders requested to be included in such registration.
(d) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company, and (ii)
as shall permit the disposition of such Registrable Securities in accordance
with the method or methods of disposition selected pursuant to Section 2.1 (b)
hereof.
(e) Expenses. Except as otherwise provided in this Section 2.1(e)
or in Section 2.1(i), the Company shall bear all expenses incurred in connection
with two effective registrations pursuant to Section 2 hereof and each
registration pursuant to Section 2.2 hereof (excluding in each case underwriting
discounts and commissions applicable to Registrable Securities), including,
without limitation, in each case: (i) all registration, filing and National
Association of Securities Dealers fees; (ii) all fees and expenses of complying
with securities or blue sky laws; (iii) all word processing, duplicating and
printing expenses, messenger, delivery and shipping expenses; (iv) the fees and
disbursements of the accountants and counsel for the Company including the
expenses of any special audits or "cold comfort" letters or opinions required by
or incident to such registrations; (v) the fees and disbursements of the
accountants and counsel for the Company for services rendered in connection with
inclusion of Registrable Securities in the registration; provided, however, that
if the accountants or the counsel for the Company refuse or decline to undertake
such representation because of an actual or perceived conflict of interest or
otherwise, then the Company shall bear the reasonable fees and disbursements of
one firm of counsel and one firm of accountants (as appropriate) retained by the
Holders of such Registrable Securities; (vi) premiums and other costs of
policies of insurance maintained for the benefit of the Company against
liabilities arising out of the public offering of the Registrable Securities;
(vii) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and commissions, if
any. In all cases, each Holder of Registrable Securities shall pay the
underwriting discounts and commissions applicable to the securities sold by such
Holder.
(f) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective
(unless a substantial cause of the failure of such registration statement to
become effective shall be attributable to one or more Holders of Registrable
Securities whose securities were to have been included in such registration
statement), (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason, resulting
in a failure to consummate the offering of Registrable Securities offered
thereby, (iii) if after a registration statement with respect thereto has become
effective, the offering of Registrable Securities offered thereby is not
consummated due to factors beyond the control of the Holders of such Registrable
Securities, including without limitation in the context of a proposed firm
commitment underwriting, the fact that the underwriters have advised the Holders
of such Registrable Securities that such Registrable Securities cannot be sold
at a net price equal to or above the net price specified in the notice to the
Company at the time of the request, or (iv) if the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied (unless a substantial cause
of such conditions to closing not being satisfied shall be attributable to one
or more Holders of Registrable Securities whose Registrable Securities were
included in such registration statement).
(g) Selection of Underwriters. If a requested registration
pursuant to this Section 2.1 involves an underwritten offering, the underwriter
or underwriters thereof shall be selected by the
Company with the approval of the Holders of at least 50% of the Registrable
Securities to be so registered, which approval will not be unreasonably
withheld.
(h) Priority in Requested Registrations. If a requested
registration pursuant to this Section 2.1 involves an underwritten offering, and
the managing underwriter shall advise the Company in writing (with a copy to
each Holder requesting registration) that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range acceptable to the
Holders of more than 50% of the Registrable Securities requested to be included
in such registration, then the Registrable Securities requested to be registered
pursuant to this Section 2.1 shall be reduced to the number of Registrable
Securities which the Company is so advised can be sold in (or during the time
of) such offering by decreasing the Registrable Securities requested to be
registered (pro rata among the Holders requesting such registration on the basis
of the percentage of the Registrable Securities held by such Holder immediately
prior to the filing of the registration statement with respect to such
registration). Nothing in this Section 2.1(h) shall affect (i) the rights of
Series A Persons requesting registration to include all of the securities
requested to be registered by such Series A Persons in such registration without
reduction prior to the inclusion of any Registrable Securities requested to be
registered hereunder. or (ii) the rights of Series B Persons requesting
registration to include securities in such registration on a pro rata basis with
the Registrable Securities of Holders hereunder in the same manner as described
in Section 2.I(c) hereof.
(i) Form S-3. Notwithstanding the other provisions of this Section
2.1, until the fifth anniversary of the effective date of the Company's first
registration statement under the Securities Act, the Company shall be required
by this Section 2.1 to effect, and bear at' expenses (as determined pursuant to
Section 2.1(e) hereof) incurred in connection with, up to four registrations on
Form S-3 (or any successor similar form) during such period, provided that the
Registrable Securities to be registered thereon are expected to have an
aggregate disposition price (before deductions for underwriting discounts and
commissions) of at least $500,000.
(j) Notwithstanding anything to the contrary contained herein, the
Company shall not be obligated to prepare and file any other Registration
Statement pursuant to this Section 2.1 within 180 days of the consummation of an
underwritten public offering of Common Stock pursuant to a registration
statement filed under the Securities Act.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at any
time prior to the fifth anniversary of the effective date of the Company's first
registration statement under the Securities Act proposes to register any of its
securities under the Securities Act (other than by a registration on Form S-8,
S-4 or any successor similar forms or any other form not available for
registering the Registrable Securities for sale to the public and other than
pursuant to Section 2.1 hereof), whether or not for sale for its own account it
will each such time. at least 15 days prior to filing the registration
statement, give written notice to all Holders of Registrable Securities of its
intention to do so. Upon the written request of Holders of an aggregate of at
least 100,000 shares (appropriately adjusted for subdivisions and combinations
of shares of Common Stock and dividends on Common Stock payable in shares of
Common Stock hereafter) of Registrable
Securities made within 15 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
each such Holder and the intended method of disposition thereof), the Company
will use reasonable efforts to effect the registration under the Securities Act
of all Registrable Securities which the Company has been so requested to
register by the Holders of such Registrable Securities, to the extent requisite
to permit the disposition (determined pursuant to the provisions of Section 2.1
(b) hereof) of the Registrable Securities so to be registered provided that if
at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay registration of-such securities, the Company may, at
its election, give written notice of such determination to each Holder of
Registrable Securities and, thereupon, (i) in the case of a determination not to
register. shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay expenses in accordance with Section 2.1(e) hereof), without prejudice,
however, to the rights of any Holder or Holders of Registrable Securities
entitled to do so to request that such registration be effected as a
registration under Section 2.1 hereof, and (ii) in the case of a determination
to delay registering, shall be permitted to delay registering any Registrable
Securities being registered pursuant to this Section 2.2(a), for the same period
as the delay in registering such other securities. No registration effected
under this Section 2.2 shall relieve the Company of its obligation to effect any
registration upon request under Section 2.1 hereof.
(b) Priority in Incidental Registrations. If (i) a registration
pursuant to this Section 2.2 involves an underwritten offering of the securities
so being registered, whether or not for sale for the account of the Company, to
be distributed (on a firm commitment basis) by or through one or more
underwriters of recognized standing, whether or not the Registrable Securities
so requested to be registered for sale for the account of Holders of Registrable
Securities are also to be included in such underwritten offering, and (ii) the
managing underwriter of such underwritten offering shall inform the Company and
the Holders of the Registrable Securities requesting such registration by letter
of its belief that the number of securities requested to be included in such
registration exceeds the number which can be sold in (or during the time of)
such offering, then the Company may include in such offering all securities
proposed by the Company to be sold for its own account and may decrease the
number of Registrable Securities and other securities of the Company that
persons have requested to be included in such registration by (a) first
decreasing the securities requested to be included in such registration other
than Registrable Securities (pro rata among the persons requesting such
registration on the basis of the number of shares of such securities held by
such person immediately prior to the filing of the registration statement with
respect to such registration) and (b) then, to the extent necessary, decreasing
the Registrable Securities requested to be registered (pro rata among the
Holders requesting such registration on the basis of the percentage of the
Registrable Securities held by such Holders immediately prior to the filing of
the registration statement with respect to such registration); provided,
however, that the rights of Holders hereunder shall be subject to (i) the right
of the Series A Persons requesting inclusion of securities in such registration
to include all of the securities requested to be registered by such Series A
Persons in such registration without reduction prior to the inclusion of any
Registrable Securities requested to be included in such registration pursuant to
this Section 2.2., and (ii) the rights of Series B Persons requesting
registration to include
securities in such registration on a pro rata basis with the Registrable
Securities of Holders hereunder in the same manner as described in Section
2.1(c) hereof.
2.3 Registration Procedures. If and whenever the Company is
required to use reasonable efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 and 2.2 hereof,
the Company will, subject to the limitations provided herein, as expeditiously
as possible:
(a) prepare and (as soon thereafter as possible or in any event no
later than 60 days after the end of the period within which requests for
registration may be given to the Company or such longer period as the Company
shall in good faith require to produce the financial statements required in
connection with such registration) file with the Commission the requisite
registration statement to effect such registration and thereafter use reasonable
efforts to cause such registration statement to become effective, provided that
the Company may discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in Section 2.2(a)
hereof, its securities which are Registrable Securities) at any time prior to
the effective date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until such
time as all of-such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement; provided, however, that the Company shall not in
any event be required to keep the registration statement effective for a period
of more than three months after such registration statement becomes effective;
(c) furnish to each seller of Registrable Securities covered by
such registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, and such other documents, as such seller may reasonably request;
(d) use reasonable efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as each seller
thereof shall reasonably request, to keep such registration or qualification in
effect for so long as such registration statement remains in effect (provided,
however, that the Company shall not in any event be required to keep such
registration or qualification in effect for a period of more than three months
after such registration or qualification becomes effective), and take any other
action which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the securities owned by such
seller, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it
would not but for the requirements of this subdivision (d) be obligated to be so
qualified or to consent to general service of process in any such jurisdiction;
(e) use reasonable efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other United States federal or state governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(f) furnish to each seller of Registrable Securities a copy, or,
upon request, a signed counterpart, addressed to such seller (and the
underwriters, if any) of
(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if
such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), and
(ii) a "comfort" letter addressed to the underwriters,
dated the effective date of such registration statement (or, if such
registration includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), signed by the independent public
accountants who have audited the Company's financial statements included in such
registration statement, covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and, in the
case of the accountants' letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the accountants'
letter, such other financial matters, and, in the case of the legal opinion such
other legal matters, as such seller or such Holder (or the underwriters, if any)
may reasonably request;
(g) notify each seller of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or upon
the happening of any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of any such seller.
prepare and furnish to such seller a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
(h) otherwise use reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act,
and will furnish to each such seller, upon request of such seller, prior to the
filing thereof a copy of any amendment
or supplement to such registration statement or prospectus and shall not file
any such supplement or amendment if such seller shall have delivered to the
Company an opinion of counsel that such amendment or supplement does not comply
in all material respects with the requirements of the Securities Act or of the
rules or regulations thereunder;
(i) provide and cause to be maintained a transfer agent for all
Registrable Securities covered by such registration statement from and after a
date not later than the effective date of such registration statement;
(j) use reasonable efforts to list all Registrable Securities covered
by such registration statement on any securities exchange on which the Common
Stock is then listed; and
(k) refrain from making any sale or distribution of its equity
securities, except pursuant to any employee stock option plan or other employee
benefit plan and any preexisting agreement for the sale of such securities, for
at least 90 days after the closing of the public offering pursuant to such
registration.
It shall be a condition precedent to the obligations of the Company to
take any action with respect to registering a Holder's Registrable Securities
pursuant to this Section 2.3 that such seller of Registrable Securities as to
which any registration is being effected furnish the Company in writing such
information regarding such seller, the Registrable Securities and other
securities of the Company held by such seller, and the distribution of such
securities as the Company may from time to time reasonably request in writing.
If a Holder refuses to provide the Company with any of such information on the
grounds that it is not necessary to include such information in the registration
statement, the Company may exclude such Holder's Registrable Securities from the
registration statement it' the Company provides such Holder with an opinion of
counsel to the effect that such information must be included in the registration
statement and such Holder thereafter continues to withhold such information. The
deletion of such Holder's Registrable Securities from a registration statement
shall not affect the registration of the other Registrable Securities to be
included in such registration statement.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.3(g), such Holder will
forthwith discontinue such Holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.3(g) and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering of Registrable Securities pursuant to a
registration requested under Section 2.1 hereof, the Company will enter into an
underwriting agreement with such underwriters for
such offering, the portions of such agreement that relate to Holders of
Registrable Securities being registered to be reasonably satisfactory in
substance and form to each Holder of Registrable Securities being registered and
to contain such representations and warranties by the Company and such other
terms as are generally prevailing in .agreements of this type, including,
without limitation, indemnities substantially to the effect and to the extent
provided in Section 2.6 hereof. Each such Holder of Registrable Securities will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable requests of the Company regarding the
form thereof, provided that nothing herein contained shall diminish the
foregoing obligations of the Company. If requested by the underwriters of any
underwritten offering pursuant to a registration under Section 2.1 hereof, each
Holder of Registrable Securities agrees to enter into an agreement with such
underwriters not to sell his or its shares of stock in the Company for a period
of time (not to exceed 180 days) after the effectiveness of a registration
statement equal to the period of time which the sellers of securities in such
registration have agreed not to sell their shares after the effectiveness of
such registration statement. The Holders of Registrable Securities to be
distributed by such underwriters shall be parties to such underwriting
agreement. Any such Holder shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
Registrable Securities and other securities of the Company, such Holder's
intended method of distribution, and any representations, warranties or
agreements required by law.
(b) Incidental (Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.2 hereof and such securities are to be distributed by
or through one or more underwriters, the Company will, if requested by any
Holder of Registrable Securities as provided in Section 2.2 hereof and subject
to the provisions of Section 2.2(b) hereof, arrange for such underwriters to
include all the Registrable Securities to be offered and sold by such Holder
owning the securities to be distributed by such underwriters. In such event, the
Holders of Registrable Securities to be distributed by such underwriters shall
be parties to the underwriting agreement between the Company and such
underwriters. Any such Holder shall not be required to make any representations
or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
Registrable Securities or other securities of the Company, such Holder's
intended method of distribution and any representations, warranties or
agreements required by law.
2.5 Preparation: Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and one counselor firm of counsel and one accountant or firm of accountants
representing all the Holders of Registrable Securities to be registered under
such registration statement, the opportunity to participate in the preparation
of such registration statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Holders' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act
2.6 Indemnification.
(a) Indemnification by the Company. In the event any Registrable
Securities are included in a registration statement under this Section 2, to the
extent permitted by law, the Company will, and hereby does, indemnify and hold
harmless the seller of any Registrable Securities covered by such registration
statement, its directors and officers, each other person who participates as an
underwriter in the offering or sale of such securities and each other person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or any such director or officer or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such seller and each such
director, officer, underwriter and controlling person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such seller expressly for use in the preparation
thereof, and provided further that the Company shall not be liable to any person
who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of the Registrable
Securities to such person if such statement or omission was corrected in such
final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any such
director, officer, underwriter or controlling person and shall survive the
transfer of such securities by such seller.
(b) Indemnification by the Sellers. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to Section 2.3 hereof, that the Company shall have received an
undertaking satisfactory to it from the prospective seller of such securities,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 2.6) each underwriter, each person
who controls such underwriter within the meaning of the Securities Act, the
Company, each director of the Company, each officer of the Company and each
other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in strict conformity
with written information furnished to the Company by such seller expressly for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement; provided that
such prospective seller shall not be liable to any person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of such person's failure to send or give a copy of the final prospectus, as
the same may be then supplemented or amended, to the person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
person if such statement or omission was corrected in such final prospectus.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of any underwriter, the Company or any such
director, officer or controlling person and shall survive the transfer of such
securities by such seller. In no event shall the liability of any selling holder
of Registrable Securities under this Section 2.6(b) be greater in amount than
the dollar amount of the proceeds received by such holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 2.6, as a
condition to the obligations of the indemnifying party with respect thereto,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 2.6, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 2.6 (with appropriate modifications)
shall be given by the Company
and each seller of Registrable Securities with respect to any required
registration or other qualification of securities under any federal or state law
or regulation of any governmental authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required by this
Section 2.6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in this Section
2.6 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such loss, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue statement of material fact
or omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. 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 Section 2.6(c) hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The Company and, as a condition to the registration of any of their
Registrable Securities, the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.6(f) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 2.6(f), no underwriter
shall be required to contribute any amount in excess of the amount by which the
aggregate total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
selling Holder shall be required to contribute any amount in excess of the
amount by which the aggregate total price at which the Registrable Securities of
such selling Holder were offered to the public exceeds the amount of any damages
which such selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(1) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
2.7 Reporting Requirements Under Exchange Act. When it is first legally
required to do so, the Company shall register its Common Stock under Section 12
of the Exchange Act (as hereinafter defined) and shall keep effective such
registration and shall timely file such
information, documents and reports as the Commission may require or prescribe
under Section 13 of the Exchange Act. From and after the effective date of the
first registration statement filed by the Company under the Securities Act, the
Company shall (whether or not it shall then be required to do so) timely file
such information, documents and reports which a corporation, partnership or
other entity subject to Section 13 or 15(d) (whichever is applicable) of the
Exchange Act is required to file.
Immediately upon becoming subject to the reporting requirements of
either Section 13 or 15(d) of the Exchange Act, the Company shall forthwith upon
request furnish any Holder of Registrable Securities (i) a written statement by
the Company that it has complied with such reporting requirements, (ii) a copy
of the most recent annual: or quarterly report of the Company, and (iii) such
other reports and documents filed by the Company with the Commission as such
Holder may reasonably request in availing itself of an exemption for the sale of
Registrable Securities without registration under the Securities Act. The
Company acknowledges and agrees that the purposes of the requirements contained
in this Section 2.7 are (a) to enable any such Holder to comply with the current
public information requirement contained in Paragraph (c) of Rule 144 should
such Holder ever wish to dispose of any of the securities of the Company
acquired by it without registration under the Securities Act in reliance upon
Rule 144 (or any other similar exemptive provision) and (b) to qualify the
Company for the use of registration statements on Form S-3. In addition, the
Company shall take such other measures and file such other information,
documents and reports, as shall hereafter be required by the Commission as a
condition to the availability of Rule 144 under the Securities Act (or any
similar exemptive provision hereafter in effect) and the use of Form S-3. The
Company also covenants to use reasonable efforts, to the extent that it is
reasonably within its power to do so, to qualify for the use of Form S-3.
2.8 Stockholder Information. The Company may require each Holder of
Registrable Securities as to which any registration is to be effected pursuant
to this Section 2 to furnish the Company such information in writing with
respect to such Holder and the distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
2.9 Forms. All references in this Agreement to particular forms of
registration statements are intended to include, and shall be deemed to include,
references to all successor forms which are intended to replace, or to apply to
similar transactions as, the forms herein referenced.
2.10 Transfer of Registration Rights. The registration rights granted
to the Holders of Registrable Securities under this Section 2 may not be
transferred without the prior written consent of the Company; provided that such
registration rights may be transferred, in whole or in part, without such prior
written consent in connection with the transfer of Registrable Securities to (i)
a partner in or an affiliate (defined as any person which directly or indirectly
controls, is controlled by, or is tinder common control with such Purchaser) of
one or more of the Purchasers or (ii) to an immediate or remote transferee of a
Purchaser who after such transfer is the Holder of at least 25% of the number of
Registrable Securities purchased by such original Purchaser hereunder as set
forth on Schedule A hereto (appropriately adjusted for subdivisions and
combinations of shares of Common Stock and dividends on Common Stock payable in
shares of Common Stock subsequent to the date of this Agreement).
3. Miscellaneous.
3.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY
THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
3.2 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
3.3. Amendment. Except as expressly provided herein, this Agreement, or
any provision hereof, may be amended, waived, discharged or terminated upon the
written consent of the Company and the Holders holding at least two-thirds (2/3)
of the then outstanding Registrable Securities. Notwithstanding the foregoing,
Schedule A to this Agreement may be amended by the Company, in its sole
discretion and without the consent of any Purchasers or Holders, in order to add
additional purchasers of Series C Convertible Preferred Stock of the Company to
Schedule A and to this Agreement, and, upon such amendment by the Company, such
additional purchasers of Series C Convertible Preferred Stock shall become
"Purchasers" for all purposes under this Agreement.
3.4 Notices. etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, or otherwise delivered by hand or by messenger including
Federal Express or similar courier service, addressed (a) if to a Holder. at
such Holder's address set forth on Schedule A hereto, or at such other address
as such party shall have furnished to the Company in writing, or (b) if to the
Company at 8122 Datapoint Drive. Suite 1250, San Antonio. Texas 78229, Attn:
Chief Executive Officer, or at such other address as the Company shall have
furnished to the other parties hereto.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective upon receipt, if delivered personally or by
courier, or, if sent by mail, at the earlier of its receipt or 48 hours after
same has been deposited in a regularly maintained receptacle for the deposit of
the United States mail, addressed and mailed as aforesaid.
3.5 Delays or Omissions. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any party to this
Agreement shall impair any such right, power or remedy of such party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver or any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party to this Agreement, shall be cumulative and not alternative.
3.6 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
3.7 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
effective upon the date first set forth above.
"COMPANY"
___________________________________________
BIONUMERIK PHARMACEUTICALS, INC.
By: /s/ FREDERICK H. HAUSHEER
---------------------------------------
Title: Chairman and Chief Executive Officer
SCHEDULE A
Holders
Purchaser No. of Shares
--------- -------------
T.M. Hederman Trust 98,000
700 Colonial Rd. Suite 110
Memphis TN 38117-5191
SBC Communications Inc. 93,431
175 E. Houston, Room 7-A-50
San Antonio TX 78205
B.P. Investment Partners II, L.P. 59,800
46 Timber Creek Drive Suite 200
Cordova TN 38018
Kinetic Concepts, Inc 49,020
8023 Vantage Drive
San Antonio TX 78230
Ohrstrom & Co. 41,700
c/o 540 Madison Avenue -35th floor
New York, NY 10022
Herbert L. Carrel and Beverly K Carrel JT Ten 25,000
4 Sherborne Lane
San Antonio Tx 78257
The Ohrstrom Foundation, Inc. 24,510
c/o 540 Madison Avenue -35th floor
New York, NY 10022
Joe R. and Johnette W. Colingo, 10,000
as joint tenants with the right of survivorship
711 Delmas Avenue
Pascagoula MS 39567
John T. Flaxel M.D. 10,000
98 East Bay Drive
North Bend OR 97459
Roy C. Williams 10,000
816 Harbor Lane
Pascagoula, MS 39567
Elizabeth B. Messick Issue Trust dtd 5/20/68 10,000
C/O Inverness Counsel
545 Madison Ave
New York NY 10022
Lanette G. Duperier 9,318
Sole and separate property
535 Elizabeth Road
San Antonio TX 78209
Ronald C. Stone 4,902
10022 Greentree Rd.
Houston Tx 77042
Jon M. Irvin 3,410
4114 Medical Drive #3307
San Antonio TX 78229
Don Benage 3,000
1748 Lance End Ln.
St Louis MO 63026
Gulf Coast Urology Clinic P/S Plan 2,500
Mark Lyell M.D., trustee
C/O Charles R. Bailey
Morgan Keegan & Co
21 N. Beltline Hwy
Mobile AL 36608
Mark S. and Johnette C. Lyell (JT WROS) 2,500
3501 Montgomery Ln
Pascagoula MS 39567
Urological Surgical Assoc. 401K Plan FBO 2,451
Clayton Hudnall
2829 Babcock #629
San Antonio TX 78229
Scott L. and Maggie M. Sledge 2,451
15 Court Circle
San Antonio TX 78209
Dennis & Beth L. Abernathie JTWROS 2,450
400 Keene St.
Columbia MO 65201
Gerald V. Cupp IRA 2,450
1101 North Shore Drive
Columbia MO 65203
Mark B. Wildermuth 2,000
14 Lewis Wharf #332
Boston MA 02110
Drew Donnelly Benage 1,961
1424 Kienstra Lane
St. Louis MO 63135
Michael D. Kamitsuka, M. D. 1,961
22612 NE 23rd PL
Redmond WA 98053
Margaret Hausheer 1,500
12900 E. 36th Terr.
Independence MO 64055
Richard D. or Linda M. Borschuk 1,500
3317 Whitesworth Road
Phoenix MD 21131
John C. Ellis M.D. and Jean H. Ellis M.D. 1,500
1600 Arrowhead Trail
Blue Springs, MO 64015
Hally Randall Carver 1,200
3701 Wickersham
Houston TX 77027
William E. Randall 1,200
3249 Chevy Chase
Houston TX 77019
David C Randall 1,200
126 Albacore
Galveston TX 77550
Risher Randall, Jr. 1,200
1614 Hazard
Houston TX 77019
John L. Margrave and Mary Lou Margrave 1,000
5012 Tangle Lane
Houston TX 77056-2114
Addendum No. 1 to
Schedule A
Holders
Number of
Purchaser Shares
--------- ------
Dr. Robert Frist 49,020
1326 Page Road
Nashville TN 37205
B.P. Investment Partners II, L.P. 25,500
46 Timber Creek Drive Suite 200
Cordova TN 38018
General Robert F. McDermott 14,706
604 Ridgemont
San Antonio TX 78209
John B. Goodman 10,000
1501 Seamist
Houston TX 77008
Harold Brannan 5,900
C/O John B. Low
4040 Broadway. Suite 609
San Antonio TX 78209
Edward A. Cross, II 5,000
Real Estate Keogh Plan
2 Laurel Place
San Antonio TX 78209
L. Herbert Stumberg, Jr. 4,902
211 Country Lane
San Antonio TX 78209
Leon and Julie Payne joint tenents with right of survivorship 4,902
7806 Chevy Chase
Houston TX 77063
Dan C. Perry 3,000
314 Canterbury Hill
San Antonio TX 78209
James Delwood 2,940
15419 St. Cloud
Houston TX 77062
Ohrstrom & Co. 2,500
540 Madison Avenue -35th floor
New York, NY 10022
John Rudolph Spalj 2,500
Minister's Point
Deerwood MN 56444
John Rudoph Spalj Jr. 2,500
107 The Drive
Deerwood, MN 56444
Donald Delwood Profit Sharing Plan 2,259
Donald M. Delwood, trustee
801 E. Broadway
Columbia MO 65201
Joe R. McFarlane, Jr. 2,000
700 Ridgemont
San Antonio TX 78209
Dennis E. Noll 1,500
14926 Eminence
San Antonio TX 78248
Zellars C. West 1,500
1216 Mountain View Drive
Greensburg P A 15601
James D. and Elaine C. Nagy 1,500
4103 Dover Rd
Richmond VA 23221
Richfield Bank and Trust Co. as Trustee of 1,470
St. Paul Anesthesiologists P/S Plan FBO Lutz
6625 Lyndale Ave. South
Richfield MN 55423
Jon M. Irvin 540
4114 Medical Drive #3307
San Antonio TX 78229
Kris and/or Nancy Tufto 500
9033 Duckwood Trail
Woodbury MN 55125
First National Bank of Onaga c/f 500
C/O First National Bank of Onaga
301 Leonard
Onaga KS 66521
Addendum No. 2
to
Schedule A
HOLDERS
Number of
Purchaser Shares
--------- ------
Will Stackhouse, III 15,000
123 Stanford Avenue
Redondo Beach, CA 90278-4039
Colingo, Williams, Heidelberg, Steinberger 5,000
& McElhaney, P.A. 401K Plan FBO Roy C. Williams
711 Delmas Avenue
Pascagoula MS 39567
Roy C. Williams 2,000
816 Harbor Lane
Pascagoula MS 39567
Margaret Hausheer 5,000
12900 E. 36th Terr.
Independence MO 64055
Richard S. Whitlock and Maura Whitlock 4,902
joint tenants with right of survivorship
4009 Pine St.
Pascagoula MS 39567
Lanette G. Duperier 3,000
Sole and Separate Property
535 Elizabeth Road
San Antonio TX 78209
William G. Quinn 2,942
2450 Purdy Lane
Columbia MO 65201
Zellars C. West 2,500
Smith Barney Inc. as IRA R/O custodian
Two PPG Place, Suite 250
Pittsburgh P A 15222
Joe R. Colingo and wife, Johnette W. Colin go 2,000
as joint tenants with right of survivorship
711 Delmas Avenue
Pascagoula MS 39567
Mark S. and Johnette C. Lyell (JTWROS) 2,000
3501 Montgomery Ln
Pascagoula MS 39567