EXHIBIT 4.2
ANTIGENICS INC.
REGISTRATION RIGHTS AGREEMENT
January 25, 2005
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of January 25, 2005, by and among Antigenics Inc., a
Delaware corporation (the "Company"), UBS Securities LLC, Moors & Cabot,
Inc. and Brimberg & Co. (collectively, the "Initial Purchasers") pursuant
to that certain Purchase Agreement, dated January 20, 2005 (the "Purchase
Agreement"), among the Company and the Initial Purchasers.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement. The terms "herein," "hereof," "hereto,"
"hereinafter" and similar terms, as used in this Agreement, shall in each case
refer to this Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement.
The Company agrees with the Initial Purchasers (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Covered Securities
(as defined herein) (each of the foregoing a "Holder" and, together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
(a) "Additional Filing Deadline Date" has the meaning set forth in
Section 2(e) hereof.
(b) "additional interest" has the meaning set forth in Section 2(e)
hereof.
(c) "Additional Interest Accrual Period" has the meaning set forth
in Section 2(e) hereof.
(d) "Additional Interest Amount" has the meaning set forth in
Section 2(e) hereof.
(e) "Additional Interest Payment Date" means each February 1 and
August 1 of each year.
(f) "Affiliate" means, with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
(g) "Amendment Effectiveness Deadline Date" has the meaning set
forth in Section 2(d) hereof.
(h) "Business Day" means each day on which the New York Stock
Exchange is open for trading.
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(i) "Claim" has the meaning set forth in Section 9(o) hereof.
(j) "Common Stock" means the shares of common stock, $0.01 par value
per share, of the Company and any other shares of capital stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Underlying Common Stock.
(k) "Conversion Rate" has the meaning ascribed to it in the
Indenture.
(l) "counsel for the Initial Purchasers" means Dewey Ballantine LLP.
(m) "Covered Security" has the meaning set forth in Section 1(rr)
hereof.
(n) "Designated Counsel" has the meaning set forth in Section 5
hereof.
(o) "Effectiveness Deadline Date" has the meaning set forth in
Section 2(a) hereof.
(p) "Effectiveness Period" means a period (subject to extension
pursuant to Section 3(i) hereof) that terminates when there are no
Registrable Securities outstanding.
(q) "Event" has the meaning set forth in Section 2(e) hereof.
(r) "Event Date" has the meaning set forth in Section 2(e) hereof.
(s) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
(t) "Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
(u) "Form S-1" means Form S-1 under the Securities Act.
(v) "Form S-3" means Form S-3 under the Securities Act.
(w) "Holder" has the meaning set forth in the preamble hereto.
(x) "Holder Information" has the meaning set forth in Section 6(b)
hereof.
(y) "Indemnified Party" has the meaning set forth in Section 6(c)
hereof.
(z) "Indemnifying Party" has the meaning set forth in Section 6(c)
hereof.
(aa) "Indenture" means the Indenture, dated as of January 25, 2005,
between the Company and the Trustee, pursuant to which the Notes are being
issued.
(bb) "Initial Purchasers" has the meaning set forth in the preamble
hereto.
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(cc) "Initial Shelf Registration Statement" has the meaning set
forth in Section 2(a) hereof.
(dd) "Issue Date" means January 25, 2005.
(ee) "Material Event" has the meaning set forth in Section 3(i)
hereof.
(ff) "Notes" means the 5.25% Convertible Senior Notes due 2025 of
the Company to be purchased pursuant to the Purchase Agreement.
(gg) "Notice and Questionnaire" means a written questionnaire
containing substantially the information called for by the Selling
Securityholder Questionnaire attached as Annex A to the Offering
Memorandum of the Company, dated January 20, 2005, relating to the Notes
(the "Offering Memorandum").
(hh) "Notice Holder" means, on a given date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such
date, provided not all of such Holder's Registrable Securities that have
been registered for resale pursuant to a Notice and Questionnaire have
been sold in accordance with a Shelf Registration Statement.
(ii) "Offering Memorandum" has the meaning set forth in Section
1(gg) hereof.
(jj) "Option Purchase Date" has the meaning ascribed to it in the
Indenture.
(kk) "Proceeding" has the meaning set forth in Section 6(c) hereof.
(ll) "Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 415 under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments and any prospectus filed
with respect to any Shelf Registration Statement pursuant to Rule 424
under the Securities Act, and all materials incorporated by reference or
deemed to be incorporated by reference in such Prospectus.
(mm) "Purchase Agreement" has the meaning set forth in the preamble
hereof.
(nn) "Record Date" means, (i) January 15, with respect to an
Additional Interest Payment Date that occurs on February 1 and (ii) July
15, with respect to an Additional Interest Payment Date that occurs on
August 1.
(oo) "Record Holder" means, with respect to an Additional Interest
Payment Date relating to a Registrable Security for which any Additional
Interest Amount has
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accrued, a Notice Holder that was the holder of record of such Registrable
Security at the close of business on the Record Date relating to such
Additional Interest Payment Date.
(pp) "Redemption" has the meaning ascribed to it in the Indenture.
(qq) "Redemption Date" has the meaning ascribed to it in the
Indenture.
(rr) "Registrable Securities" means the Notes, until such Notes have
been converted into the Underlying Common Stock, and, at all times, the
Underlying Common Stock and any securities into or for which such
Underlying Common Stock has been converted or exchanged, and any security
issued with respect thereto upon any stock dividend, split or similar
event (each of the foregoing, a "Covered Security") until, in the case of
any such security, the earliest of:
(i) the date on which such security has been effectively
registered under the Securities Act and disposed of in accordance
with the Registration Statement relating thereto;
(ii) the date on which such security may be resold without
restriction pursuant to Rule 144(k) or any successor provision
thereto;
(iii) the date on which such security has been publicly sold
pursuant to Rule 144 or any successor provision thereto; and
(iv) the date that is two (2) years after the later of the
Issue Date and the latest "additional time of purchase" (as defined
in the Purchase Agreement).
(ss) "Registration Expenses" has the meaning set forth in Section 5
hereof.
(tt) "Registration Statement" means any registration statement,
under the Securities Act, of the Company that covers any of the
Registrable Securities pursuant to this Agreement, including the
Prospectus forming, or deemed to form, a part of such registration
statement, any amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all materials
incorporated by reference or deemed to be incorporated by reference in
such registration statement, Prospectus, amendment or supplement.
(uu) "Repurchase at Holder's Option" has the meaning ascribed to it
in the Indenture.
(vv) "Repurchase Date" has the meaning ascribed to it in the
Indenture.
(ww) "Repurchase Upon Repurchase Event" has the meaning ascribed to
it in the Indenture.
(xx) "Rule 144" means Rule 144 under the Securities Act, as such
Rule may be
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amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
(yy) "Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
(zz) "SEC" means the Securities and Exchange Commission.
(aaa) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
(bbb) "Shelf Registration Statement" means the Initial Shelf
Registration Statement and any Subsequent Shelf Registration Statement.
(ccc) "Subsequent Shelf Registration Statement" has the meaning set
forth in Section 2(b) hereof.
(ddd) "Subsequent Shelf Registration Statement Effectiveness
Deadline Date" has the meaning set forth in Section 2(d) hereof.
(eee) "Suspension Notice" has the meaning set forth in Section 3(i)
hereof.
(fff) "Suspension Period" has the meaning set forth in Section 3(i)
hereof.
(ggg) "TIA" means the Trust Indenture Act of 1939, as amended.
(hhh) "Trustee" means HSBC Bank USA, National Association, the
trustee under the Indenture.
(iii) "Underlying Common Stock" means the Common Stock issuable upon
conversion of the Notes.
2. Shelf Registration.
(a) The Company shall prepare and file, or cause to be prepared and
filed, with the SEC, by the date (the "Filing Deadline Date") that is one
hundred and twenty (120) days after the Issue Date, a Registration
Statement (the "Initial Shelf Registration Statement") for an offering to
be made on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act registering the resale from time to time by Holders thereof
of all of the Registrable Securities (or, if registration of Registrable
Securities not held by Notice Holders is not permitted by the rules and
regulations of the SEC, then registering the resale from time to time by
Notice Holders of their Registrable Securities). The Initial Shelf
Registration Statement shall be on Form S-1 or Form S-3 or another
appropriate form and shall provide for the registration of such
Registrable Securities for resale by such Holders in accordance with the
methods of distribution indicated in their
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Notice and Questionnaires and permitted by the form of Notice and
Questionnaire included in the Offering Memorandum; provided, however, that
in no event shall such methods of distribution take the form of an
underwritten offering of Registrable Securities without the Company's
prior written consent, which the Company may withhold in its sole
discretion. The Company shall use its reasonable best efforts to (i) cause
the Initial Shelf Registration Statement to become effective under the
Securities Act as promptly as reasonably practicable but in any event by
the date (the "Effectiveness Deadline Date") that is one hundred eighty
(180) days after the Issue Date and (ii) (except to the extent permitted
under Section 3(i) hereof) keep the Initial Shelf Registration Statement
(and any Subsequent Shelf Registration Statement) continuously effective
under the Securities Act until the expiration of the Effectiveness Period.
At the time the Initial Shelf Registration Statement becomes effective
under the Securities Act, each Holder that became a Notice Holder on or
before the fifth (5th) Business Day before the date of such effectiveness
shall be named as a selling securityholder in the Initial Shelf
Registration Statement and the related Prospectus in a manner that,
assuming the accuracy of the information in such Notice Holder's Notice
and Questionnaire, permits such Notice Holder to deliver such Prospectus
to purchasers of Registrable Securities in accordance with the Securities
Act.
(b) If any Shelf Registration Statement ceases to be effective under
the Securities Act for any reason (except to the extent permitted under
Section 3(i) hereof) at any time during the Effectiveness Period, the
Company shall use its reasonable best efforts to promptly cause such Shelf
Registration Statement to become effective under the Securities Act
(including obtaining the prompt withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement), and in any event
shall, within thirty (30) days of such cessation of effectiveness, (i)
amend such Shelf Registration Statement in a manner reasonably expected to
obtain the withdrawal of any order suspending the effectiveness of such
Shelf Registration Statement or (ii) file an additional Registration
Statement (a "Subsequent Shelf Registration Statement") for an offering to
be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act registering the resale from time to time by Holders thereof
of all securities that are Registrable Securities as of the time of such
filing (or, if registration of Registrable Securities not held by Notice
Holders is not permitted by the rules and regulations of the SEC, then
registering the resale from time to time by Notice Holders of their
securities that are Registrable Securities as of the time of such filing).
If a Subsequent Shelf Registration Statement is filed, the Company shall
use its reasonable best efforts to (A) cause such Subsequent Shelf
Registration Statement to become effective under the Securities Act as
promptly as practicable after such filing, but in no event later than the
Subsequent Shelf Registration Statement Effectiveness Deadline Date and
(B) except to the extent permitted under Section 3(i) hereof, keep such
Subsequent Shelf Registration Statement (or another Subsequent Shelf
Registration Statement) continuously effective until the end of the
Effectiveness Period. Any such Subsequent Shelf Registration Statement
shall be on Form S-1 or Form S-3 or another appropriate form and shall
provide for the registration of such Registrable Securities for resale by
such Holders in accordance with the methods of distribution indicated in
their Notice and Questionnaires and permitted by the form of Notice and
Questionnaire included in the Offering Memorandum; provided, however,
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that in no event shall such methods of distribution take the form of an
underwritten offering of Registrable Securities without the Company's
prior written consent, which the Company may withhold in its sole
discretion.
(c) The Company shall supplement and amend any Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration
Statement, if required by the Securities Act or as reasonably requested by
the Initial Purchasers.
(d)
(i) Each Holder of Registrable Securities agrees that, if such
Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(d) and Section 3(i). Each Holder of
Registrable Securities wishing to sell Registrable Securities
pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a completed and executed Notice and Questionnaire
to the Company prior to any attempted or actual distribution of
Registrable Securities under a Shelf Registration Statement. If a
Holder becomes a Notice Holder after the fifth (5th) Business Day
before the date the Initial Shelf Registration Statement becomes
effective under the Securities Act, the Company shall, as promptly
as reasonably practicable after the date such Holder became a Notice
Holder, and in any event, subject to clauses (A), (B) and (D) below,
within five (5) Business Days after such date,
(A) if required by applicable law, file with the SEC a
supplement to the related Prospectus or a post-effective
amendment to the Shelf Registration Statement or file with the
SEC a Subsequent Shelf Registration Statement and any
necessary supplement or amendment to any document incorporated
therein by reference and file any other required document with
the SEC so that such Notice Holder is named as a selling
securityholder in a Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Notice
Holder to deliver a Prospectus to purchasers of the
Registrable Securities in accordance with the Securities Act;
provided, however, that (i) with respect to any Holder that
shall become a Notice Holder after the date that is forty five
(45) days after the date the Initial Shelf Registration
becomes effective under the Securities Act, the Company shall
not be required to file more than one (1) such supplement
during any thirty (30) day period, and (ii) if a
post-effective amendment or a Subsequent Shelf Registration
Statement is required by the rules and regulations of the SEC
in order to permit resales by such Notice Holder, the Company
shall not be required to file more than one (1) post-effective
amendment or Subsequent Shelf Registration Statement for such
purpose in any ninety (90) day period;
(B) if the Company shall have filed a post-effective
amendment
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to the Shelf Registration Statement or filed a Subsequent
Shelf Registration Statement, the Company shall use its
reasonable best efforts to cause such post-effective amendment
or Subsequent Shelf Registration Statement, as the case may
be, to become effective under the Securities Act as promptly
as practicable, but in any event by the date (the "Amendment
Effectiveness Deadline Date," in the case of a post-effective
amendment, and the "Subsequent Shelf Registration Statement
Effectiveness Deadline Date," in the case of a Subsequent
Shelf Registration Statement) that is forty five (45) days
after the date such post-effective amendment or Subsequent
Shelf Registration Statement, as the case may be, is required
by this Section 2(d) to be filed with the SEC;
(C) the Company shall, upon request, provide such Notice
Holder a reasonable number of copies of any documents filed
pursuant to clause (A) above;
(D) if such Holder became a Notice Holder during a
Suspension Period, or a Suspension Period is put into effect
within five (5) Business Days after the date such Holder
became a Notice Holder, the Company shall so inform such
Notice Holder and shall, subject to the limitations set forth
above in this Section 2(d), take the actions set forth in
clauses (A), (B) and (C) above within five (5) Business Days
after expiration of such Suspension Period in accordance with
Section 3(i);
(E) the Company shall notify such Notice Holder as
promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment or Subsequent
Shelf Registration Statement filed pursuant to clause (A)
above; and
(F) if, under the Securities Act, the Company has more
than one option as to the type or manner of making any such
filing, the Company shall make the required filing or filings
in the manner or of a type that the Company reasonably expects
will result in the earliest availability of a Prospectus for
effecting resales of Registrable Securities.
(ii) Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any
Holder that is not a Notice Holder as a selling securityholder in
any Shelf Registration Statement or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder (regardless of
when such Holder became a Notice Holder) shall be named as a selling
securityholder in a Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(d)
or Section 2(a), as applicable.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages
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with precision, if:
(i) the Initial Shelf Registration Statement has not been
filed with the SEC on or prior to the Filing Deadline Date;
(ii) the Initial Shelf Registration Statement has not become
effective under the Securities Act on or prior to the Effectiveness
Deadline Date;
(iii) either a supplement to a Prospectus, a post-effective
amendment or a Subsequent Shelf Registration Statement is required
to be filed with the SEC and fails to be filed with the SEC within
the prescribed period and in the manner set forth in Section 2(d)
(the date such filing is required to be made being an "Additional
Filing Deadline Date") or, in the case of a post-effective amendment
or a Subsequent Shelf Registration Statement, such post-effective
amendment or Subsequent Registration Statement does not become
effective under the Securities Act by the Amendment Effectiveness
Deadline Date or the Subsequent Shelf Registration Statement
Effectiveness Deadline Date, as the case may be;
(iv) the Initial Shelf Registration Statement or any
Subsequent Registration Statement is filed with the SEC and becomes
effective under the Securities Act but shall thereafter cease to be
effective (without being succeeded or replaced by a new Registration
Statement that has been filed with the SEC, and has become effective
under the Securities Act, before such cessation) or usable under the
Securities Act for the offer and sale of Registrable Securities in
the manner contemplated by this Agreement for a period of time
(including any Suspension Period) which shall exceed forty five (45)
days in the aggregate in any three (3) month period or ninety (90)
days in the aggregate in any twelve (12) month period; or
(v) any Registration Statement or amendment thereto, at the
time it becomes effective under the Securities Act, or any
Prospectus relating thereto, at the time it is filed with the SEC
or, if later, at the time the Registration Statement to which such
Prospectus relates becomes effective under the Securities Act, shall
fail to name each Holder as a selling securityholder in such a
manner as to permit such Holder to sell its Registrable Securities
pursuant to such Registration Statement and Prospectus in accordance
with the Securities Act, in each case to the extent such Holder was
entitled, pursuant to the terms of this Agreement, to be so named
(it being understood that, without limitation, naming such Holder in
a manner that permits such Holder to sell only a portion of such
Holder's Registrable Securities referenced in such Holder's Notice
and Questionnaire shall be deemed to be an "Event" (as defined
below) for purposes of this clause (v)).
Each of the events of a type described in any of the foregoing clauses (i)
through (v) are individually referred to herein as an "Event," and
(V) the Filing Deadline Date, in the case of clause (i) above,
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(W) the Effectiveness Deadline Date, in the case of clause
(ii) above,
(X) the Additional Filing Deadline Date, the Amendment
Effectiveness Deadline Date or the Subsequent Shelf Registration
Statement Effectiveness Deadline Date, as the case may be, in the
case of clause (iii) above,
(Y) the date on which the duration of the ineffectiveness or
unusability of the Shelf Registration Statement exceeds the number
of days permitted by clause (iv) above, in the case of clause (iv)
above, and
(Z) the date the applicable Registration Statement or
amendment thereto shall become effective under the Securities Act,
or the date the applicable Prospectus is filed with the SEC or, if
later, the time the Registration Statement to which such Prospectus
relates becomes effective under the Securities Act, as the case may
be, in the case of clause (v) above,
are each herein referred to as an "Event Date." Events shall be deemed to
continue until the following dates with respect to the respective types of
Events:
(A) the date the Initial Shelf Registration Statement is filed
with the SEC, in the case of an Event of the type described in
clause (i) above;
(B) the date the Initial Shelf Registration Statement becomes
effective under the Securities Act, in the case of an Event of the
type described in clause (ii) above;
(C) the date a supplement to a Prospectus, a post-effective
amendment or a Subsequent Shelf Registration Statement, whichever is
required, is filed with the SEC (in the case of a supplement) or
becomes effective under the Securities Act (in the case of a
post-effective amendment or a Subsequent Shelf Registration
Statement), in the case of an Event of the type described in clause
(iii) above;
(D) the date the Initial Shelf Registration Statement or the
Subsequent Shelf Registration Statement, as the case may be, becomes
effective and usable again, or the date another Subsequent Shelf
Registration Statement is filed with the SEC pursuant to Section
2(b) and becomes effective, in the case of an Event of the type
described in clause (iv) above; or
(E) the date a supplement to the Prospectus is filed with the
SEC, or the date a post-effective amendment to the Registration
Statement becomes effective under the Securities Act, or the date a
Subsequent Shelf Registration Statement becomes effective under the
Securities Act, which supplement, post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, names
as selling securityholders, in such a manner as to permit them to
deliver such Prospectus supplement, or the Prospectus related to
such post-effective
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amendment or Subsequent Shelf Registration Statement, as the case
may be, to purchasers of Registrable Securities in accordance with
the Securities Act, all Holders entitled as herein provided to be so
named, in the case of an Event of the type described in clause (v)
above.
Notwithstanding anything herein to the contrary, all Events described in
clauses (ii), (iii) or (v) of this Section 2(e) shall be deemed to be
suspended during any Suspension Period, except to the extent the duration
of such Suspension Period exceeds forty five (45) days in the aggregate in
any three (3) month period or ninety (90) days in the aggregate in any
twelve (12) month period.
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have
occurred and are continuing (an "Additional Interest Accrual Period"), the
Company agrees to pay, as additional interest ("additional interest") and
not as a penalty, an amount (the "Additional Interest Amount") at the rate
described below, payable periodically on each Additional Interest Payment
Date to Record Holders, to the extent of, for each such Additional
Interest Payment Date, the unpaid Additional Interest Amount that has
accrued to (but excluding) such Additional Interest Payment Date (or, if
the Additional Interest Accrual Period shall have ended prior to such
Additional Interest Payment Date, to (but excluding) the day immediately
after the last day of such Additional Interest Accrual Period); provided,
however, that any unpaid Additional Interest Amount that has accrued with
respect to any Note, or portion thereof, called for Redemption on a
Redemption Date, or purchased by the Company pursuant to a Repurchase at
Holder's Option or Repurchase Upon Repurchase Event on an Option Purchase
Date or Repurchase Date, as the case may be, that is after the close of
business on the Record Date relating to such Additional Interest Payment
Date and before such Additional Interest Payment Date, shall, in each
case, be instead paid, on such Redemption Date, Option Purchase Date or
Repurchase Date, as the case may be, to the Holder who submitted such Note
or portion thereof for Redemption, Repurchase at Holder's Option or
Repurchase Upon Repurchase Event, as the case may be.
The Additional Interest Amount shall accrue at a rate per annum equal to
one quarter of one percent (0.25%) for the ninety (90) day period
beginning on, and including, the Event Date and thereafter at a rate per
annum equal to one half of one percent (0.50%) of the aggregate principal
amount of the Notes of which such Record Holders were holders of record at
the close of business on the applicable Record Date; provided, however,
that, notwithstanding the foregoing:
(I) except to the extent provided in the final paragraph of
this Section 2(e), no Additional Interest Amounts shall accrue as to
any Covered Security from and after the earlier of (x) the date such
Covered Security is no longer a Registrable Security, (y) in the
case such Covered Security is a Note, the date, and to the extent,
such Note is converted into shares of Common Stock in accordance
with the Indenture and (z) the expiration of the Effectiveness
Period;
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(II) only those Holders (or their subsequent transferees)
failing to be named as selling securityholders in the manner
prescribed in Section 2(e)(v) above shall be entitled to receive any
Additional Interest Amounts that have accrued solely with respect to
an Event of the type described in Section 2(e)(v) above (it being
understood that this clause (II) shall not impair any right of any
Holder to receive Additional Interest Amounts that have accrued with
respect to an Event other than an Event of the type described in
Section 2(e)(v) above);
(III) only those Holders (or their subsequent transferees)
whose delivery of a Notice and Questionnaire gave rise to the
obligation of the Company, pursuant to Section 2(d)(i), to file and,
if applicable, make effective under the Securities Act the
supplement, post-effective amendment or Subsequent Shelf
Registration Statement referred to in Section 2(e)(iii) above shall
be entitled to receive any Additional Interest Amounts that have
accrued solely with respect to an Event of the type described in
Section 2(e)(iii) above (it being understood that this clause (III)
shall not impair any right of any Holder to receive Additional
Interest Amounts that have accrued with respect to an Event other
than an Event of the type described in Section 2(e)(iii) above); and
(IV) if a Covered Security ceases to be outstanding during an
Additional Interest Accrual Period for which an Additional Interest
Amount would be payable with respect to such Covered Security, then
the Additional Interest Amount payable hereunder with respect to
such Covered Security shall be prorated on the basis of the number
of full days such Covered Security is outstanding during such
Additional Interest Accrual Period.
The rate of accrual of the Additional Interest Amount with respect to any
period shall not exceed the rate provided for in this Section 2(e)
notwithstanding the occurrence of multiple concurrent Events. Following
the cure of all Events requiring the payment by the Company of Additional
Interest Amounts with respect to Registrable Securities pursuant to this
Section, the accrual of Additional Interest Amounts shall cease (without
in any way limiting the effect of any subsequent Event requiring the
payment of Additional Interest Amounts by the Company). All installments
of Additional Interest shall be paid by wire transfer of immediately
available funds to the account specified by the Notice Holder or, if no
such account is specified, by mailing a check to such Notice Holder's
address shown in the register of the registrar for the Notes or for the
Underlying Common Stock, as the case may be.
All of the Company's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Security at the time such
Registrable Security ceases to be a Registrable Security shall survive
until such time as all such obligations with respect to such security have
been satisfied in full (notwithstanding termination of this Agreement
pursuant to Section 9(n)).
The parties hereto agree that the additional interest provided for in this
Section 2(e) constitutes a reasonable estimate of the damages in respect
of the Notes that may be
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incurred by Holders of the Notes by reason of an Event relating to such
Notes, including, without limitation, the failure of a Shelf Registration
Statement to be filed, become effective under the Securities Act, amended
or replaced to include the names of all Notice Holders or available for
effecting resales of Registrable Securities in accordance with the
provisions hereof. Subject to any rights that may arise pursuant to
Section 6 hereof, the parties hereto also agree that the Company shall
have no liability to a Holder of Notes for monetary damages with respect
to an Event relating to such Notes other than the additional interest
provided for in this Section 2(e); provided, however, that nothing in this
paragraph shall impair any rights a holder of Underlying Common Stock, to
the extent such holder holds Underlying Common Stock and not Notes, may
have with respect to an Event relating to such Underlying Common Stock (it
being understood that interest that accrues, in accordance with the
immediately following paragraph, on an Additional Interest Amount with
respect to an Event that relates to a Note shall be deemed, for purposes
of this proviso, to be an Event that relates to such Note notwithstanding
any subsequent conversion of such Note into shares of Underlying Common
Stock).
If any Additional Interest Amounts are not paid when due, then, to the
extent permitted by law, such overdue Additional Interest Amounts, if any,
shall bear interest, compounded semi-annually, until paid at the rate of
interest payable with respect to overdue amounts on the Notes pursuant to
Section 2.12 of the Indenture.
(f) The Trustee shall be entitled, on behalf of Holders, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of any Additional Interest Amount.
3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Shelf Registration Statement or
Shelf Registration Statements on Form S-1 or Form S-3 or any other
appropriate form under the Securities Act available for the sale of the
Registrable Securities by the Holders thereof in accordance with the
method or methods of distribution described in the Notice and
Questionnaires, and use its reasonable best efforts to cause each such
Shelf Registration Statement to become effective under the Securities Act
and remain effective under the Securities Act as provided herein;
provided, that, before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto with the SEC, the
Company shall furnish to the Initial Purchasers and counsel for the
Initial Purchasers and, if applicable, Designated Counsel copies of all
such documents proposed to be filed and shall give reasonable
consideration to such comments as the Initial Purchasers, counsel for the
Initial Purchasers or Designated Counsel reasonably shall propose within
two (2) Business Days of the delivery of such copies to the Initial
Purchasers and such counsel.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement as may be necessary,
except to the
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extent permitted under Section 3(i) hereof, to keep such Shelf
Registration Statement or Subsequent Shelf Registration Statement
continuously effective until the expiration of the Effectiveness Period;
cause the related Prospectus to be supplemented by any required Prospectus
supplement and, as so supplemented, to be filed with the SEC pursuant to
Rule 424 (or any similar provisions then in force) under the Securities
Act; and, except to the extent permitted under Section 3(i) hereof, comply
with the provisions of the Securities Act applicable to it with respect to
the disposition of all securities covered by each Shelf Registration
Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so
supplemented.
(c) As promptly as practicable, give notice to the Notice Holders,
the Initial Purchasers, counsel for the Initial Purchasers and, if
applicable, Designated Counsel:
(i) when any Prospectus, Prospectus supplement, Shelf
Registration Statement or post-effective amendment to a Shelf
Registration Statement has been filed with the SEC and, with respect
to a Shelf Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act,
(ii) of any request, following the effectiveness of a Shelf
Registration Statement under the Securities Act, by the SEC or any
other federal or state governmental authority for amendments or
supplements to such Shelf Registration Statement or the related
Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the
effectiveness of any Shelf Registration Statement or the initiation
or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose,
(v) after the effective date of any Shelf Registration
Statement filed with the SEC pursuant to this Agreement, of the
occurrence of (but not the nature of or details concerning) a
Material Event, and
(vi) of the determination by the Company that a post-effective
amendment to a Shelf Registration Statement or a Subsequent Shelf
Registration Statement will be filed with the SEC, which notice may,
at the discretion of the Company (or as required pursuant to Section
3(i)), state that it constitutes a Suspension Notice, in which event
the provisions of Section 3(i) shall apply.
(d) Subject to the terms hereof, use its reasonable best efforts to
(i) prevent the
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issuance of, and, if issued, to obtain the withdrawal of, any order
suspending the effectiveness of a Shelf Registration Statement and (ii)
obtain the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case at
the earliest possible moment, and provide prompt notice to each Notice
Holder and the Initial Purchasers, counsel for the Initial Purchasers and,
if applicable, Designated Counsel, of the withdrawal or lifting of any
such order or suspension.
(e) If requested by the Initial Purchasers or any Notice Holder, as
promptly as practicable incorporate in a Prospectus supplement or a
post-effective amendment to a Shelf Registration Statement such
information as the Initial Purchasers, such Notice Holder or counsel for
the Initial Purchasers or, if applicable, Designated Counsel shall
determine to be required to be included therein by the Securities Act and
make any required filings of such Prospectus supplement or such
post-effective amendment; provided, however, that the Company shall not be
required to take any action under this Section 3(e) unless the Company
receives the opinion of counsel for the party making such request that
such action is required by the Securities Act.
(f) As promptly as practicable, furnish, upon request, to each
Notice Holder and the Initial Purchasers, without charge, at least one (1)
conformed copy of each Shelf Registration Statement and each amendment
thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference
and all exhibits (unless requested in writing to the Company by such
Notice Holder or the Initial Purchasers).
(g) During the Effectiveness Period, deliver to each Notice Holder,
in connection with any sale of Registrable Securities pursuant to a Shelf
Registration Statement, without charge, as many copies of the Prospectus
or Prospectuses relating to such Registrable Securities and any amendment
or supplement thereto as such Notice Holder may reasonably request; and
the Company hereby consents (except during such periods that a Suspension
Notice is outstanding and has not been revoked) to the use of such
Prospectus and each amendment or supplement thereto by each Notice Holder,
in connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in the
manner set forth therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to a Shelf Registration Statement, use its reasonable best
efforts to register or qualify or cooperate with the Notice Holders in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any Notice Holder reasonably requests in
writing (which request may be included in the Notice and Questionnaire);
use its reasonable best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness
Period in connection with such Notice Holder's offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption
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therefrom) and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Shelf
Registration Statement and the related Prospectus; provided, however, that
the Company will not be required to (i) qualify generally to do business
in any jurisdiction where it is not then so qualified, (ii) take any
action that would subject it to general service of process in suits, other
than those arising out of the offering or sale of Registrable Securities
or arising in connection with this Agreement, in any jurisdiction where it
is not now so subject, or (iii) take any action that would subject it to
taxation in any jurisdiction where it is not then so subject.
(i) Upon: (A) the issuance by the SEC of a stop order suspending the
effectiveness of any Shelf Registration Statement or the initiation of
proceedings with respect to any Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act; (B) the occurrence of any event or the
existence of any fact as a result of which any Shelf Registration
Statement shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (C) the
occurrence or existence of any pending corporate development (a "Material
Event") that, in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of any Shelf Registration
Statement and the related Prospectus,
(i) in the case of clause (B) or (C) above, subject to the
next sentence, as promptly as practicable, prepare and file, if
necessary pursuant to the Securities Act, a post-effective amendment
to such Shelf Registration Statement or a supplement to such
Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference
into such Shelf Registration Statement and Prospectus so that such
Shelf Registration Statement does not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and so that such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder (it being understood that the Company may rely
on information provided by each Notice Holder with respect to such
Notice Holder), and, in the case of a post-effective amendment to a
Shelf Registration Statement, subject to the next sentence, use its
reasonable best efforts to cause it to become effective under the
Securities Act as promptly as practicable, and
(ii) give notice to the Notice Holders, the Initial
Purchasers, counsel for the Initial Purchasers and, if applicable,
Designated Counsel that the availability of the Shelf Registration
Statement is suspended (a "Suspension Notice") (and, upon receipt of
any Suspension Notice, each Notice Holder agrees
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not to sell any Registrable Securities pursuant to such Shelf
Registration Statement until such Notice Holder's receipt of copies
of the supplemented or amended Prospectus provided for in clause (i)
above or until such Notice Holder is advised in writing by the
Company that the Prospectus may be used).
The Company will use its reasonable best efforts to ensure that the use of
the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon
as, in the reasonable judgment of the Company, the Shelf Registration
Statement does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and the Prospectus does not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
(z) in the case of clause (C) above, as soon as, in the reasonable
discretion of the Company, such suspension is no longer appropriate. The
period during which the availability of the Shelf Registration Statement
and any Prospectus may be suspended (the "Suspension Period") without the
Company incurring any obligation to pay additional interest pursuant to
Section 2(e) shall not exceed forty five (45) days in the aggregate in any
three (3) month period or ninety (90) days in the aggregate in any twelve
(12) month period. The Effectiveness Period shall be extended by the
number of days from and including the date of the giving of the Suspension
Notice to and including the date on which the Notice Holder received
copies of the supplemented or amended Prospectus provided in clause (i)
above, or the date on which it is advised in writing by the Company that
the Prospectus may be used and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus.
(j) Make available for inspection during normal business hours by
representatives for the Notice Holders and any underwriters participating
in any disposition pursuant to any Shelf Registration Statement and any
broker-dealers, attorneys and accountants retained by such Notice Holders
or any such underwriters, all relevant financial and other records and
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate officers, directors and employees
of the Company and its subsidiaries to make available for inspection
during normal business hours all relevant information reasonably requested
by such representatives for the Notice Holders, or any such underwriters,
broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar "due diligence"
examinations; provided, however, that such persons shall first agree in
writing with the Company that any information that is confidential at the
time of delivery of such information shall be kept confidential by such
persons and shall be used solely for the purposes of exercising rights
under this Agreement, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of governmental or regulatory authorities, (ii) disclosure of
such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any
Shelf Registration Statement or the use of any Prospectus referred to in
this Agreement) or necessary to defend or prosecute a claim
-17-
brought against or by any such persons (e.g., to establish a "due
diligence" defense), (iii) such information becomes generally available to
the public other than as a result of a disclosure or failure to safeguard
by any such person or (iv) such information becomes available to any such
person from a source other than the Company and such source is not bound
by a confidentiality agreement or is not otherwise under a duty of trust
to the Company; provided further, that the foregoing inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Notice Holders and the other parties
entitled thereto by one counsel for such Notice Holders and such other
parties.
(k) Comply with all applicable rules and regulations of the SEC that
are applicable to any Shelf Registration Statement; and make generally
available to its securityholders earnings statements (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act), which statements shall cover a period of twelve (12)
months commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of each Shelf Registration
Statement (within the meaning of Rule 158(c) under the Securities Act),
and which statements shall be so made generally available to the Company's
securityholders no later than forty (40) days after the end of the
applicable twelve (12) month period if such period ends on or after
December 15, 2004 and before December 15, 2006 (or thirty five (35) days
after the end of the applicable twelve (12) month period if such period
ends on or after December 15, 2006) (or, if such earnings statement is
filed with the SEC on Form 10-K under the Exchange Act, (i) seventy five
(75) days after the end of the applicable twelve (12) month period if such
period ends before December 15, 2005 or (ii) sixty (60) days after the end
of the applicable twelve (12) month period if such period ends on or after
December 15, 2005); provided, however, that, notwithstanding the foregoing
in this Section 3(k), to the extent any such earnings statement will be
contained in one report, or any combination of reports, on Form 10-K
and/or Form 10-Q under the Exchange Act filed by the Company with the SEC
and the deadline, under the Exchange Act, for the Company to file, with
the SEC, such report, if such earnings statement is contained in a Form
10-K, or to file, with the SEC, the last of such reports which together
constitute such earnings statement, if such earnings statement is
contained in a combination of reports, is a date that is later than the
applicable foregoing deadline, then such later date shall apply in place
of the otherwise applicable foregoing deadline.
(l) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Shelf Registration Statement, which
certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as are permitted by the
Indenture and registered in such names as such Notice Holder may request
in writing at least two (2) Business Days prior to any sale of such
Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by
a Shelf Registration Statement not later than the effective date of the
Initial Shelf Registration Statement and provide the Trustee and the
transfer agent for the Common Stock with
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certificates for the Registrable Securities that are in a form eligible
for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(o) Upon the filing of the Initial Shelf Registration Statement, and
upon the effectiveness under the Securities Act of the Initial Shelf
Registration Statement, announce the same, in each case by release through
a reputable national newswire service.
(p) Cause the Indenture to be qualified under the TIA not later than
the effective date of the Initial Shelf Registration Statement; and, in
connection therewith, cooperate with the Trustee to effect such changes to
the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner.
(q) Use its reasonable best efforts to cause the Underlying Common
Stock to be listed on The Nasdaq National Market.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Shelf
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section 2(d) hereof (including the information required to be
included in such Notice and Questionnaire) and the information set forth in the
next sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary in
order to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading. Each Holder agrees to
keep confidential the receipt by it of any Suspension Notice and the contents
thereof, except as required pursuant to applicable law.
5. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Section 2 and Section 3 of this Agreement whether or not any of the Shelf
Registration Statements are filed or declared
-19-
effective under the Securities Act. Such fees and expenses ("Registration
Expenses") shall include, without limitation, (i) all registration and filing
fees and expenses (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal securities laws and
state securities or Blue Sky laws (including, without limitation, reasonable
fees and disbursements of counsel for the Holders in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such
jurisdictions as the Notice Holders of a majority of the Registrable Securities
being sold pursuant to a Shelf Registration Statement may designate), (ii) all
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and printing Prospectuses), (iii) all duplication and
mailing expenses relating to copies of any Shelf Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) all fees and disbursements
of counsel for the Company, (v) the fees and disbursements of one counsel
("Designated Counsel") for the Holders in connection with the Shelf Registration
Statement, which Designated Counsel shall be designated in writing to the
Company by Holders of a majority of the Registrable Securities (provided,
however, that in no event shall the Company be obligated pursuant to this clause
(v) to pay an amount to the extent such amount, in the aggregate with all other
payments theretofore made pursuant to this clause (v), exceeds fifteen thousand
dollars ($15,000)), (vi) all fees and disbursements of the Trustee and its
counsel and of the registrar and transfer agent for the Common Stock, and (vii)
Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay the internal expenses of the
Company (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the fees and expenses incurred in connection with the
listing by the Company of the Registrable Securities on any securities exchange
or quotation system on which similar securities of the Company are then listed
and the fees and expenses of any person, including, without limitation, special
experts, retained by the Company. Except as provided above, each Holder shall
pay all brokerage fees and commissions, all transfer taxes, the fees and
expenses of any advisors the Holder engages and all similar fees and costs
relating to such Holder's disposition of Registrable Securities.
6. Indemnification, Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Initial Purchaser, each Holder, each person (a "Controlling Person"), if
any, who controls any Initial Purchaser or Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and the
respective officers, directors, partners, employees, representatives and
agents of any Initial Purchaser, the Holders or any Controlling Person
(each, an "Indemnified Party"), from and against any loss, damage,
expense, liability, claim or any actions in respect thereof (including the
reasonable cost of investigation) which such Indemnified Party may incur
or become subject to under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, damage, expense, liability, claim or
action arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration
Statement or Prospectus, including any document incorporated by reference
therein, or in any amendment or supplement thereto or in any preliminary
prospectus, or arises out of or is
-20-
based upon any omission or alleged omission to state a material fact
required to be stated in any Shelf Registration Statement or in any
amendment or supplement thereto or necessary to make the statements
therein not misleading, or arises out of or is based upon any omission or
alleged omission to state a material fact necessary in order to make the
statements made in any Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, in the light of the
circumstances under which such statements were made, not misleading, and
the Company shall reimburse, as incurred, the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, damage, expense, liability,
claim or action in respect thereof; provided, however, that the Company
shall not be required to provide any indemnification pursuant to this
Section 6(a) in any such case insofar as any such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue
statement or omission or alleged untrue statement or omission of a
material fact contained in, or omitted from, and in conformity with
information furnished in writing by or on behalf of an Initial Purchaser
or a Holder to the Company expressly for use in, any Shelf Registration
Statement or any Prospectus, including information provided by such Holder
in a Notice and Questionnaire; provided further, however, that this
indemnity agreement will (A) be in addition to any liability which the
Company may otherwise have to such Indemnified Party and (B) not apply to
any loss, damage, expense, liability or claim arising from an offer or
sale, occurring during a Suspension Period, of Registrable Securities by a
Holder to whom the Company theretofore provided a Suspension Notice in
accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify,
defend and hold harmless the Company, its directors, officers, employees
and any person who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (each, a "Company
Indemnified Party") from and against any loss, damage, expense, liability,
claim or any actions in respect thereof (including the reasonable cost of
investigation) which such Company Indemnified Party may incur or become
subject to under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, damage, expense, liability, claim or action arises
out of or is based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with
information (the "Holder Information") furnished in writing by or on
behalf of such Holder to the Company expressly for use in, any Shelf
Registration Statement or Prospectus, or in any amendment or supplement
thereto, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such Holder
Information required to be stated in any Shelf Registration Statement or
Prospectus, or any amendment or supplement thereto, or necessary to make
such Holder Information not misleading, (B) a sale, by such Holder
pursuant to a Shelf Registration Statement in or with respect to which
such Holder is named as a selling security holder, of Registrable
Securities during a Suspension Period, provided that the Company shall
have theretofore provided such Holder a Suspension Notice in accordance
with Section 3(i), or (C) a public sale of Registrable Securities by such
Holder without delivery, if required by the Securities Act, of the most
recent applicable Prospectus provided to such Holder by the Company
pursuant to Section 3(g) or Section 2(d)(i)(C); and, subject to the
limitation set forth in the immediately preceding clause, each Holder
shall reimburse, as
-21-
incurred, the Company for any legal or other expenses reasonably incurred
by the Company or any such controlling person in connection with
investigating or defending any loss, damage, expense, liability, claim or
action in respect thereof. This indemnity agreement will be in addition to
any liability which such Holder may otherwise have to the Company or any
of its controlling persons. In no event shall the liability of any selling
Holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale,
pursuant to the Shelf Registration Statement, of the Registrable
Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a "Proceeding") is
brought against any person in respect of which indemnity may be sought
pursuant to either Section 6(a) or Section 6(b), such person (the
"Indemnified Party") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Party") in writing of the
institution of such Proceeding and the Indemnifying Party shall assume the
defense of such Proceeding; provided, however, that the failure to so
notify such Indemnifying Party shall not relieve such Indemnifying Party
from any liability which it may have to such Indemnified Party or
otherwise, except to the extent such failure to notify materially
prejudices such Indemnifying Party. Such Indemnified Party shall have the
right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless the employment of such counsel shall have been authorized in
writing by such Indemnifying Party in connection with the defense of such
Proceeding or such Indemnifying Party shall not have employed counsel to
have charge of the defense of such Proceeding within thirty (30) days of
the receipt of notice thereof or such Indemnified Party shall have
reasonably concluded upon the written advice of counsel that there may be
one or more defenses available to it that are different from, additional
to or in conflict with those available to such Indemnifying Party (in
which case such Indemnifying Party shall not have the right to direct that
portion of the defense of such Proceeding on behalf of the Indemnified
Party, but such Indemnifying Party may employ counsel and participate in
the defense thereof but the fees and expenses of such counsel shall be at
the expense of such Indemnifying Party), in any of which events such
reasonable fees and expenses shall be borne by such Indemnifying Party and
paid as incurred (it being understood, however, that such Indemnifying
Party shall not be liable for the expenses of more than one separate
counsel in any one Proceeding or series of related Proceedings together
with reasonably necessary local counsel representing the Indemnified
Parties who are parties to such action). An Indemnifying Party shall not
be liable for any settlement of such Proceeding effected without the
written consent of such Indemnifying Party, but if settled with the
written consent of such Indemnifying Party, such Indemnifying Party agrees
to indemnify and hold harmless an Indemnified Party from and against any
loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an Indemnified Party shall have
requested an Indemnifying Party to reimburse such Indemnified Party for
fees and expenses of counsel as contemplated by the second sentence of
this paragraph, then such Indemnifying Party agrees that it shall be
liable for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than sixty (60)
Business Days after receipt by such Indemnifying Party of the aforesaid
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request, (ii) such Indemnifying Party shall not have fully reimbursed such
Indemnified Party in accordance with such request prior to the date of
such settlement and (iii) such Indemnified Party shall have given such
Indemnifying Party at least thirty (30) days' prior notice of its
intention to settle. No Indemnifying Party shall, without the prior
written consent of any Indemnified Party, effect any settlement of any
pending or threatened Proceeding in respect of which such Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such Proceeding and does not include
an admission of fault or culpability or a failure to act by or on behalf
of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is
unavailable to an Indemnified Party under Section 6(a) or Section 6(b), or
insufficient to hold such Indemnified Party harmless, in respect of any
losses, damages, expenses, liabilities, claims or actions referred to
therein, then each applicable 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 losses, damages, expenses,
liabilities, claims or actions (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand,
and by the Holders or the Initial Purchasers, on the other hand, from the
offering of the Registrable 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 Company, on the one
hand, and of the Holders or the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities, claims or actions, as well as any other
relevant equitable considerations. The relative fault of the Company, on
the one hand, and of the Holders or the Initial Purchasers, on the other
hand, shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Company or by the Holders or the Initial Purchasers 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, damages, expenses, liabilities,
claims and actions referred to above shall be deemed to include any
reasonable legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and each Initial Purchaser agree that
it would not be just and equitable if contribution pursuant to this
Section 6 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 Section 6(d) above. Notwithstanding the provisions of this
Section 6, no Holder shall be required to contribute any amount in excess
of the amount by which the total price at which the Registrable Securities
giving rise to such contribution obligation and sold by such Holder were
offered to the public exceeds the amount of any damages which it has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No
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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.
The Holders' respective obligations to contribute pursuant to this Section
6 are several in proportion to the respective amount of Registrable
Securities they have sold pursuant to a Shelf Registration Statement, and
not joint. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by
or on behalf of any Holder or any Initial Purchaser or any person
controlling any Holder or Initial Purchaser, or the Company, or the
Company's officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Security by any Holder.
7. Information Requirements.
(a) The Company covenants that, if at any time before the end of the
Effectiveness Period it is not subject to the reporting requirements of
the Exchange Act, it will cooperate with any Holder of Registrable
Securities and take such further action as any Holder of Registrable
Securities may reasonably request in writing (including, without
limitation, making such representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the
Securities Act within the limitations of the exemptions provided by Rule
144, Rule 144A and Regulation S under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether the Company has complied with the
reporting requirements of the Exchange Act during the preceding twelve
(12) months, unless such a statement has been included in the Company's
most recent quarterly or annual report filed with the SEC pursuant to
Section 13 or Section 15(d) of Exchange Act.
(b) During the Effectiveness Period, the Company shall use its
commercially reasonable efforts to (i) file the reports required to be
filed by it under the Exchange Act during the Effectiveness Period and
(ii) comply with the registrant requirements set forth in the instructions
to Form S-3.
8. Underwritten Registrations. Notwithstanding anything herein to the
contrary, no Registrable Securities covered by a Shelf Registration Statement
may be sold in an underwritten offering pursuant to the Shelf Registration
Statement without the prior written consent of the Company. No person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person's Registrable Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such
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underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under this Agreement may
result in material irreparable injury to the Initial Purchasers and the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Initial Purchaser or Holder may obtain such
relief as may be required to specifically enforce the Company's
obligations under this Agreement. The Company further agrees to waive the
defense in any action for specific performance that a remedy at law would
be adequate. Notwithstanding the foregoing two sentences, this Section
9(a) shall not apply to the subject matter referred to in and contemplated
by Section 2(e).
(b) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to the Company's securities that
conflicts with the rights granted to the Holders in this Agreement. The
Company represents and warrants that the rights granted to the Holders
hereunder are not in conflict with the rights granted to the holders of
the Company's securities under any other agreements. The Company
represents and covenants that it has not granted, and shall not grant, to
any of its security holders (other than the Holders in such capacity) the
right to include any of the Company's securities in any Shelf Registration
Statement filed pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of outstanding Registrable Securities;
provided, however, that, no consent is necessary from any of the Holders
in the event that this Agreement is amended, modified or supplemented for
the purpose of curing any ambiguity, defect or inconsistency that does not
adversely affect the rights of any Holders. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Shelf
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders
of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Shelf Registration Statement; provided, however,
that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Registrable Securities outstanding at
the time of any such amendment, modification, supplement, waiver or
consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 9(c),
whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.
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(d) Notices. All notices, documents and other communications
provided for or permitted hereunder shall be made in writing by hand
delivery, by telecopier, by courier guaranteeing overnight delivery or by
first-class mail, return receipt requested, and shall be deemed given (A)
when made, if made by hand delivery, (B) upon confirmation, if made by
telecopier, (C) one (1) Business Day after being deposited with such
courier, if made by overnight courier or (D) on the date indicated on the
notice of receipt, if made by first-class mail, to the parties as follows:
(i) if to a Holder, at the most current address given by such
Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
(ii) if to the Company, to:
Antigenics Inc.
630 Fifth Avenue
Suite 2100
New York, NY 10111
Attention: Chief Financial Officer
Telecopy No.: (212) 994-8299
(iii) if to the Initial Purchasers, to:
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171
Attention: Syndicate Department
Telecopy No.: (212) 713-1205
with a copy to (for informational purposes only):
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Attention: Legal Department
Telecopy No.: (212) 821-4042
and
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Syndicate Department
Telecopy No.: (203) 719-0683
or to such other address as such person may have furnished to the other
persons identified
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in this Section 9(d) in writing in accordance herewith.
(e) Majority of Registrable Securities. For purposes of determining
what constitutes holders of a majority of Registrable Securities, as
referred to in this Agreement, a majority shall constitute a majority in
aggregate principal amount of Registrable Securities, treating each
relevant holder of shares of Underlying Common Stock of the Notes as a
holder of the aggregate principal amount of Notes in respect of which such
Common Stock was issued.
(f) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its "affiliates" (as such
term is defined in Rule 405 under the Securities Act) (other than the
Initial Purchasers or subsequent Holders of Registrable Securities, if the
Initial Purchasers or such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(g) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent they may deem
such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder. The Trustee shall be entitled to the rights
granted to it pursuant to this Agreement and shall be bound by the terms
hereof.
(h) Successors and Assigns. Any person who purchases any Covered
Security from any Initial Purchaser or from any Holder shall be deemed,
for purposes of this Agreement, to be an assignee of such Initial
Purchaser or such Holder, as the case may be. This Agreement shall inure
to the benefit of and be binding upon the respective successors and
assigns of each of the parties hereto and shall inure to the benefit of
and be binding upon each Holder of any Covered Security.
(i) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which
taken together shall constitute one and the same agreement.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(k) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
(l) Severability. If any term, provision, covenant or restriction of
this
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Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall
use their reasonable best efforts to find and employ an alternative means
to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction, it being intended that
all of the rights and privileges of the parties shall be enforceable to
the fullest extent permitted by law.
(m) Entire Agreement. This Agreement is intended by the parties
hereto as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities. Except as provided in the Purchase Agreement, there are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to the registration rights
granted by the Company with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and undertakings among the
parties with respect to such registration rights. No party hereto shall
have any rights, duties or obligations other than those specifically set
forth in this Agreement.
(n) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except
for any liabilities or obligations under Section 4, Section 5 or Section 6
hereof and the obligations to make payments of and provide for additional
interest under Section 2(e) hereof to the extent such additional interest
accrues prior to the end of the Effectiveness Period and to the extent any
overdue additional interest accrues in accordance with the last paragraph
of such Section 2(e), each of which shall remain in effect in accordance
with its terms.
(o) Submission to Jurisdiction. Except as set forth below, no
proceeding, claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
("Claim") may be commenced, prosecuted or continued in any court other
than the courts of the State of New York located in the City and County of
New York or in the United States District Court for the Southern District
of New York, which courts shall have jurisdiction over the adjudication of
such matters, and the Company hereby consents to the jurisdiction of such
courts and personal service with respect thereto. The Company hereby
consents to personal jurisdiction, service and venue in any court in which
any Claim arising out of or in any way relating to this Agreement is
brought by any third party against any Initial Purchaser. THE COMPANY,
EACH INITIAL PURCHASER AND EACH HOLDER HEREBY WAIVE ALL RIGHTS TO TRIAL BY
JURY IN ANY PROCEEDING (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) IN
ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT. The Company, each
Initial Purchaser and each Holder agree that a final judgment in any such
Proceeding brought in any such court shall be conclusive and binding upon
the Company, such Initial Purchaser or such Holder, as applicable, and may
be enforced in any other courts in the jurisdiction of which the Company,
such Initial Purchaser or such Holder, as applicable, is or may be
subject, by
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suit upon such judgment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE
FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
Very truly yours,
ANTIGENICS INC.
By: _____________________
Name:
Title:
Accepted and agreed to as of the date first above written, on behalf of itself
and the other several Initial Purchasers:
UBS SECURITIES LLC
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title: