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EXHIBIT 4-F
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 11th day of August,
1995, by and between UNIMED PHARMACEUTICALS, INC, a Delaware corporation (the
"Company") and LABORATOIRES BESINS ISCOVESCO, S.A., a corporation organized
under the laws of France (the "Holder").
RECITALS
WHEREAS, the Company and the Holder have entered into an agreement
providing for the purchase by the Holder of shares of common stock of the
Company; and
WHEREAS, in connection with such equity interest, the Holder agreed to
acquire an equity interest in the Company in the form of Common Stock and a
Warrant for Common Stock; and
WHEREAS, the Holder wishes to have the right to require the Company to
register the shares of common stock which it has agreed to purchase, and which
it may receive upon exercise of the Warrant; and
WHEREAS, the Company is willing to grant those rights, subject to certain
terms and conditions;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1 Definitions. For purposes of this Agreement:
(a) The term "Stock and Warrant Agreement" means that certain Stock
and Warrant Agreement, dated August 11, 1995, between the Company and the
Holder.
(b) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as
amended (the "Act"), and the declaration or ordering of effectiveness of
such registration statement or document;
(c) The term "Registrable Securities" means the Common Stock
purchased by the Holder pursuant to the Agreement, issuable or issued to
the Holder upon the exercise of the Warrant, and any additional shares of
Common Stock issued as a dividend or other distribution with respect to,
or in exchange for or in replacement of, such Common Stock, excluding in
all cases, however, any Registrable Securities sold by a person in a
transaction in which his rights under Section 2 are not assigned.
(d) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to the then exercisable Warrant which are, Registrable
Securities.
(e) The term "Warrant" means a warrant dated the date hereof, issued
to the Holder pursuant to the Stock and Warrant Agreement.
2 Registration Rights. The Company covenants and agrees as follows:
2.1 Request for Registration.
(a) If the Company shall receive at any time after the second
anniversary of the date hereof and (i) within sixty (60) days of the end
of any of its first three fiscal quarters of each fiscal year or (ii)
within one hundred twenty (120) days of the end of any fiscal year, a
written request from the Holder that the Company file a registration
statement under the Act covering the registration of at least fifty
percent
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(50%) of the Registrable Securities then outstanding and which
represents an amount of Registrable Securities that would result in a
sale by the Holder of the lesser of all Registrable Securities received
by the Holder under the Stock and Warrant Agreement or an aggregate
offering price in excess of $1,000,000, then the Company shall, subject
to the limitations of subsection 2.1(d), effect as soon as practicable,
and in any event shall use its best efforts to file with the SEC within
45 days of the receipt of such request, the registration under the Act of
all Registrable Securities which the Holder requests to be registered,
and after such filing use its best efforts to cause such registration to
be declared effective as soon as practicable; provided, however, that the
rights of the Holder under this Section 2 shall be temporarily suspended
during any period following a notice from the Company to such Holder
under Section 2.2 with respect to a firm commitment underwriting, until
such proposed registration shall have become effective, or shall be
abandoned.
(b) If the Holder intends to distribute the Registrable Securities
covered by its request by means of an underwriting, it shall so advise
the Company as a part of its request made pursuant to this Section 2.1.
The underwriter will be selected by the Holder and shall be acceptable to
the Company, but the Company shall not unreasonably withhold such
acceptance. The Holder shall (together with the Company as provided in
subsection 2.3(e)) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by
the Holder.
(c) The Company is obligated to effect only one (1) such
registration pursuant to this Section 2.1 (counting for these purposes
only a registration which has been declared effective and pursuant to
which all Registrable Securities included in such registration have been
sold).
(d) Notwithstanding the foregoing, if the Company shall furnish to
the Holder a certificate signed by an appropriate officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its stockholders for
such registration statement to be filed and it is therefore appropriate
to defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than 60 days
after receipt of the request of the Holder, and during such 60 day
period, the Holder shall not request any additional registration;
provided, however, that the Company may not utilize this right more than
once in any twelve month period.
2.2 The Company Registration. If (but without any obligation to do
so) at any time after the second anniversary of the date hereof the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holder) any of its stock or other
securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a stock plan of the Company, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give the Holder written notice of such registration. Upon the
written request of the Holder given within twenty (20) days after mailing of
such notice by the Company, the Company shall, subject to the provisions of
Sections 2.7 and 3.1 and the rights of such other stockholders, cause to be
registered under the Act all of the Registrable Securities that such Holder has
requested to be registered.
2.3 Obligations of the Company. Whenever required under this Section
2 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of
the Holder, keep such registration statement effective for up to one
hundred eighty (180) days.
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(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Holder such numbers of conformed copies of such
registration statement and each amendment and supplement thereto
(together with all exhibits filed therewith), such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by it.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by
the Holder, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file
a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. The
Holder shall also enter into and perform its obligations under such an
agreement. The Holder may require that any and all representations given
for the benefit of the underwriters also be given to the Holder.
(f) Notify the Holder at any time when a prospectus relating thereto
is required to be delivered under the Act of the happening of any event
as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing.
(g) Furnish, at the request of the Holder, on the date that such
Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to Section 2 , if such securities
are being sold through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated
such date, of the counsel representing the Company for the purposes of
such registration, in form and substance the Holders or underwriters may
reasonably request, addressed to the underwriters, if any, and to the
Holder and (ii) a letter dated such date, from the independent public
accountants of the Company, in form and substance as is customarily given
by independent public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the
Holder.
2.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2 with
respect to the Registrable Securities that the Holder shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of the Holder's Registrable Securities.
2.5 Expenses of Demand Registration. All expenses, other than legal fees
and expenses of counsel for the Holder and underwriting discounts and
commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 2.1, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees,
fees and disbursements of counsel for the Company shall be borne by the
Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 2.1 if
the registration request is subsequently withdrawn at the request of the
Holder, unless the Holder agrees to forfeit its right to such demand
registration pursuant to Section 2.1; provided further, however, that if at the
time of such withdrawal, the Holder has learned of a material adverse change in
the condition,
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business, or prospects of the Company from that known to the Holder at
the time of its request and has withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse change,
then the Holder shall not be required to pay any of such expenses and shall
retain its rights pursuant to Section 2.1.
2.6 Expenses of the Company Registration. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 2.2 for the Holder, including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto, but excluding legal fees and expenses of
counsel for the Holder, underwriting discounts and commissions relating to
Registrable Securities, and those fees, if any, which are required by
applicable Blue Sky laws or regulations to be borne by Holder as a condition to
qualification.
2.7 Underwriting Requirements. In connection with any offering involving
an underwriting of shares of the Company's capital stock, the Company shall not
be required under Section 2.2 to include any of the Holder's securities in such
underwriting unless it accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not, jeopardize the
success of the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by stockholders to be included in
such offering exceeds the amount of securities to be sold, other than by the
Company, the underwriters determine in their sole discretion is compatible with
the success of the offering, then the Company shall be required to include in
the offering only that number of such securities, including Registrable
Securities, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering of the securities so included to be
apportioned, subject to the prior rights, if any, of the stockholders other
than the Holder, pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by such
selling stockholders). For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder which is a Holder of Registrable
Securities and which is a partnership or corporation, the partners, retired
partners and stockholders of such holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling stockholder", and
any pro-rata reduction with respect to such "selling stockholder" shall be
based upon the aggregate amount of shares carrying registration rights owned by
all entities and individuals included in such "selling stockholder", as defined
in this sentence.
2.8 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of Section 2.
2.9 Indemnification. In the event any Registrable Securities are included
in a registration statement under Section 2:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Holder, any underwriter (as defined in the Act) for
such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become
subject under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities for actions in
respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained
in such registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements
thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities
law or any rule or regulation promulgated under the Act, the 1934 Act or
any state securities law, and the Company will pay to the Holder,
underwriter or controlling person, as incurred, any
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legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 2.9(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company, nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any
such Holder, underwriter or controlling person, or in a situation in
which the Violation was caused by the intentional act or omission of such
Holder acting either in his individual capacity, or in the capacity as an
officer of the Company.
(b) To the extent permitted by law, the Holder will indemnify and
hold harmless the Company, each of its directors, each of its officers
who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any
other person selling securities in such registration statement and any
controlling person of any such underwriter or other person, against any
losses, claims, damages, or liabilities (joint or several) to which any
of the foregoing persons may become subject, under the Act, the 1934 Act
or other Federal or state law, insofar as such losses, claims, damages,
or liabilities for actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in
connection with such registration; and the Holder will pay, as incurred,
any legal or other expenses reasonably incurred by any person intended to
be indemnified pursuant to this subsection 2.9(b), in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 2.9(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Holder, which consent shall not be
unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this
Section 2.9, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in (at participant's own expense), and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve
an indemnifying party of liability for indemnification hereunder, except
to the extent that the indemnifying party is actually prejudiced by such
failure, but in any event the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it may
have to any indemnified party otherwise than under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things, whether the
untrue or alleged
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untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in
the underwriting agreement shall control.
(f) No person shall be entitled to indemnification or contribution
hereunder if such person shall have been finally determined to have been
guilty of fraudulent misrepresentation under Section 11(f) of the Act.
(g) The obligations of the Company and Holder under this Section 2.9
shall survive the completion of any offering of Registrable Securities in
a registration statement under Section 2, and otherwise.
2.10 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holder the benefits of Rule 144 promulgated under the Act and
any other rule or regulation of the SEC that may at any time permit the Holder
to sell securities of the Company to the public without registration, the
Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC
Rule 144, the Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be
reasonably requested in availing the Holder of any rule or regulation of
the SEC which permits the selling of any such securities without
registration or pursuant to such form, but only if such information is
necessary in order to determine whether the exemption is available, or in
order to utilize the exemption.
2.11 "Market Stand-Off" Agreement. The Holder hereby agrees that, during
the period of duration, not to exceed 90 days, specified by the Company and an
underwriter of common stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
it shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any securities of the Company held by it at any time during such period except
common stock included in such registration; provided, however, that the period
of duration specified above may be shortened with the prior written consent of
the underwriter and the Company. In order to enforce the foregoing covenant,
the Company may impose stop-transfer instructions with respect to the
Registrable Securities of the Holder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such
period.
2.12 Withdrawal Rights and Reallocation. If the Holder disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by written
notice to the Company and the underwriters.
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3 Miscellaneous.
3.1 Limitation of Registration Rights. Any provision herein to the
contrary notwithstanding, the Holder shall not have any registration rights
hereunder (including rights under Sections 2.1 and 2.2), and all rights to
registration hereunder shall terminate and shall be of no further force or
effect if (a) the Holder is permitted to sell all of its Registrable Securities
at the same time without restriction under Rule 144 and (b) the average weekly
trading volume of shares of the same class as the Registrable Securities during
the three month period immediately prior to the date on which the Holder wishes
to exercise its registration rights is equal to or greater than the number of
Registerable Securities owned by such Holder.
3.2 Coordination With Other Rights. This Agreement, and the rights of the
Holder, are subject to the rights of other holders of securities of the Company
in effect on the date hereof, which are described on a Schedule to the Stock
and Warrant Agreement. Without limitation of the foregoing, the rights of the
Holder to a demand registration and to be included in other registrations may
be superseded by the rights and actions of such other holders to have their
securities registered and to be included in registration statements filed by
the Company at its own initiative or pursuant to demand registration rights of
others. By execution hereof, the Holder consents and agrees to all of such
prior rights. Notwithstanding the foregoing, in no event shall the prior
rights of any person have the effect of depriving the Holder of its one demand
registration right, and if as a result of the exercise of any such prior
rights, the Holder is unable to include in its demand registration all of the
Registrable Securities which it wants to include, its demand registration
rights shall continue, notwithstanding the exercise of such one demand, until
the earlier of the time when all of the Registrable Securities requested to be
included in such demand registration shall have been sold in transactions under
which the purchasers are not further restricted from sales of such securities,
or registration rights are otherwise terminated under the provisions of this
Agreement.
3.3 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Any provision herein to the
contrary notwithstanding, it the Holder shall transfer any of the Registrable
Securities, then the rights hereunder may also be transferred with such
Registrable Securities, but in such event, the Holder and such assignees shall
have no greater rights, as a group, than the Holder had under this Agreement
prior to such transfer, and the Holder and each such assignee shall appoint one
person who shall act hereunder on behalf of the Holder and all of the
assignees.
3.4 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without giving effect to
its conflicts of laws principles.
3.5 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
3.6 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given at the time it is received if delivered
personally or by facsimile transmission, mailed by registered or certified mail
(return receipt requested, postage prepaid) or sent by overnight courier
service to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
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If to the Company:
Unimed Pharmaceuticals, Inc.
2150 East Lake Cook Road
Buffalo Grove, Illinois 60089-1862
U.S.A.
Attention: Stephen M. Simes, President
Telecopier No.: (708) 541-2533
If to the Holder:
Laboratoires Besins Iscovesco, S.A.
5, Rue du Bourg l'Abbe
75003 Paris
France
Attention: Antoine Besins
Telecopier No.: 33,1,42,77,14,62
with a copy to:
Besins Iscovesco U.S. Inc.
620 Herndon Parkway
Suite 200
Herndon, Virginia 22073-3840
Attention: Jay Bua
Telecopier No.: (703) 478-0959
3.7 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
3.8 Subject to Stock and Warrant Agreement. This Agreement is subject to
the terms and conditions of the Stock and Warrant Agreement. In the event of
any inconsistency between this Agreement and the Stock and Warrant Agreement,
the terms of Stock and Warrant Agreement shall govern. Capitalized terms used
herein which are not defined herein shall have the definitions ascribed to them
in the Stock and Warrant Agreement.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
THE COMPANY:
UNIMED PHARMACEUTICALS, INC.
By:
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Name and Title:
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HOLDER:
LABORATOIRES BESINS ISCOVESCO, S.A.
By:
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Name and Title:
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