EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
Dated as of August 5, 2002
By and Among
SCIOS INC.,
as Issuer
and
J.P. MORGAN SECURITIES INC.,
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORPORATION
NEEDHAM & COMPANY, INC.
ADAMS, HARKNESS & HILL, INC.
and
PRUDENTIAL SECURITIES INCORPORATED
as Initial Purchasers
5.50% Convertible Subordinated Notes Due 2009
TABLE OF CONTENTS
Page
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1. Definitions.........................................................................................1
2. Shelf Registration..................................................................................4
(a) Shelf Registration.........................................................................4
(b) Subsequent Shelf Registrations.............................................................5
(c) Supplements and Amendments.................................................................5
(d) Information from Holders...................................................................5
3. Liquidated Damages..................................................................................6
4. Registration Procedures.............................................................................7
5. Registration Expenses..............................................................................14
6. Indemnification....................................................................................15
7. Rules 144 and 144A.................................................................................17
8. Underwritten Registrations.........................................................................18
9. Miscellaneous......................................................................................18
(a) No Inconsistent Agreements................................................................18
(b) Adjustments Affecting Registrable Securities..............................................18
(c) Amendments and Waivers....................................................................19
(d) Notices...................................................................................19
(e) Successors and Assigns....................................................................20
(f) Counterparts..............................................................................20
(g) Headings..................................................................................20
(h) Governing Law.............................................................................21
(i) Severability..............................................................................21
(j) Securities Held by the Company or Its Affiliates..........................................21
(k) Third Party Beneficiaries.................................................................21
(l) Entire Agreement..........................................................................21
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as
of August 5, 2002, by and among SCIOS INC., a Delaware corporation (the
"Company"), J.P. MORGAN SECURITIES INC., LEHMAN BROTHERS INC., SG COWEN
SECURITIES CORPORATION, NEEDHAM & COMPANY, INC., ADAMS, HARKNESS &
HILL, INC. and PRUDENTIAL SECURITIES INCORPORATED (each individually,
an "Initial Purchaser" and, together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated July 30, 2002 (the "Purchase Agreement"), by and among
the Company and the Initial Purchasers, which provides for the sale by
the Company to the Initial Purchasers of $150,000,000 aggregate
principal amount of the Company's 5.50% Convertible Subordinated Notes
Due 2009 (the "Firm Notes"), which are convertible into Common Stock of
the Company, par value $0.001 per share (the "Underlying Shares"), plus
up to an additional $25,000,000 aggregate principal amount of the same
that the Initial Purchasers may subsequently elect to purchase pursuant
to the terms of the Purchase Agreement (the "Additional Notes" and,
together with the Firm Notes, the "Convertible Notes"). The Convertible
Notes are being issued pursuant to an indenture dated as of the date
hereof (the "Indenture") between the Company and Wells Fargo Bank,
National Association, as Trustee.
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 for the benefit of the
Initial Purchasers and subsequent holders of the Convertible Notes or
Underlying Shares. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Firm
Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
Agreement: See the first introductory paragraph hereto.
Amount of Registrable Securities: (a) With respect to Convertible
Notes constituting Registrable Securities, the aggregate principal
amount of all such Convertible Notes outstanding, (b) with respect to
Underlying Shares constituting Registrable Securities, the aggregate
number of such Underlying Shares outstanding multiplied by the
Conversion Price at the time such Convertible Notes were converted (as
defined in the Indenture), and (c) with respect to combinations
thereof, the sum of (a) and (b) for the relevant Registrable
Securities.
Business Day: Any day that is not a Saturday, Sunday or a day on
which banking institutions in New York are authorized or required by
law to be closed.
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Closing Date: August 5, 2002.
Company: See the first introductory paragraph hereto.
Convertible Notes: See the second introductory paragraph hereto.
Counsel to the Holders: See Section 5(b) hereof.
Damages Payment Date: See Section 3(c) hereof.
Depositary: The Depository Trust Company until a successor is
appointed by the Company.
Effectiveness Date: The 180th day after the Closing Date.
Effectiveness Period: See Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Filing Date: The 90th day after the Closing Date.
Holder: Any holder of Registrable Securities.
Indemnified Holder: See Section 6 hereof.
Indemnified Person: See Section 6 hereof.
Indemnifying Person: See Section 6 hereof.
Indenture: See the second introductory paragraph hereto.
Initial Purchasers: See the first introductory paragraph hereto.
Initial Shelf Registration: See Section 2(a) hereof.
Inspectors: See Section 4(n) hereof.
Liquidated Damages: See Section 3(a) hereof.
NASD: See Section 4(q) hereof.
Person: An individual, partnership, corporation, limited
liability company, unincorporated association, trust or joint venture,
or a governmental agency or political subdivision thereof.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Questionnaire Deadline: See Section 2(d) hereof.
QIU: See Section 4(q) hereof.
Records: See Section 4(n) hereof.
Registrable Securities: Each Convertible Note and all Underlying
Shares issuable upon conversion thereof and at all times subsequent
thereto until the earliest to occur of (i) a Registration Statement
covering such Convertible Note and Underlying Shares having been
declared effective by the SEC and such Convertible Note or Underlying
Shares have been disposed of in accordance with such effective
Registration Statement, (ii) such Convertible Note or Underlying Shares
having been sold in compliance with Rule 144 or could (except with
respect to affiliates of the Company within the meaning of the
Securities Act) be sold in compliance with Rule 144(k) or (iii) such
Convertible Notes and any Underlying Shares cease to be outstanding.
Registration Default: See Section 3(a) hereof.
Registration Statement: Any registration statement of the Company
filed with the SEC pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all
exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for
offers and sales of securities made in compliance therewith resulting
in offers and sales by subsequent holders that are not affiliates of an
issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the SEC.
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Rule 415: Rule 415 promulgated 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.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Registration: See Section 2(b) hereof.
Shelf Registration Statement: See Section 2(b) hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Trustee: The Trustee under the Indenture.
Underlying Shares: See the second introductory paragraph hereto.
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall use its reasonable best
efforts to prepare and file with the SEC a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Securities (the "Initial Shelf
Registration") on or prior to the Filing Date. The Initial Shelf
Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company shall not
permit any securities other than the Registrable Securities to be
included in the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below).
The Company shall use its reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and, except as set
forth in Section 3(b) hereof, to keep such Initial Shelf Registration
continuously effective under the Securities Act until the date that is
two years from the Closing Date or such shorter period ending on the
earliest of (1) the date when all Registrable Securities have been
registered on a Shelf Registration Statement and resold in the manner
contemplated hereby, (2) the date on which all Registrable Securities
are eligible to be sold to the public pursuant to Rule 144(k) under the
Securities Act of 1933, (3) the date on which all Registrable
Securities have been resold pursuant to Rule 144 under the Securities
Act of 1933 and (4) the
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date on which all the Registrable Securities cease to be outstanding
(such shortest time period referred to as the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below)
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
securities registered thereunder), the Company shall use its reasonable
best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall, within 45 days of
such cessation of effectiveness, amend the Initial Shelf Registration
in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its reasonable best
efforts to cause the Subsequent Shelf Registration to be declared
effective under the Securities Act as soon as practicable after such
filing and to keep such Registration Statement continuously effective
for a period equal to the number of days in the Effectiveness Period
less the aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf
Registration and the term "Shelf Registration Statement" means any
Registration Statement filed in connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall use its
reasonable best efforts to promptly supplement and amend the Shelf
Registration if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration,
if required by the Securities Act, or if reasonably requested by (i)
the Holders of the majority in Amount of Registrable Securities covered
by such Registration Statement or (ii) by any underwriter of such
Registrable Securities.
(d) Information from Holders. No Holder may include any of its
Registrable Securities in the Shelf Registration Statement pursuant to
this Agreement unless such Holder furnishes to the Company in writing,
prior to or on the 20th Business Day after receipt of a request
therefor (the "Questionnaire Deadline"), such information as the
Company may reasonably request for use in connection with the Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein and in any application to be filed with or under state
securities laws. In connection with all such requests for information
from Holders of Registrable Securities, the Company shall notify such
Holders of the requirements set forth in the preceding sentence. No
Holder of Registrable Securities shall be entitled to Liquidated
Damages pursuant to Section 3 hereof unless such Holder shall have
provided all such reasonably requested information prior to or on the
Questionnaire Deadline. Each Holder as to which the Shelf Registration
Statement is being effected agrees to furnish promptly to the Company
all information required to be disclosed in order to make information
previously furnished to the Company by such Holder not materially
misleading.
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3. Liquidated Damages.
(a) The Company and the Initial Purchasers agree that the Holders
of Registrable Securities will suffer damages if the Company fails to
fulfill its obligations under Section 2 hereof and that it would not be
feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay liquidated damages on the
Registrable Securities ("Liquidated Damages") under the circumstances
and to the extent set forth below (each of which shall be given
independent effect; each a "Registration Default"):
(i) if the Initial Shelf Registration is not filed on or
prior to the Filing Date, then commencing on the day after the
Filing Date, Liquidated Damages shall accrue on the Registrable
Securities at a rate of 0.25% per annum on the Amount of
Registrable Securities for the first 90 days immediately
following the Filing Date, such Liquidated Damages increasing by
an additional 0.25% per annum at the beginning of each subsequent
90-day period;
(ii) if the Initial Shelf Registration is not declared
effective by the SEC on or prior to the Effectiveness Date, then
commencing on the day after the Effectiveness Date, Liquidated
Damages shall accrue on the Registrable Securities at a rate of
0.25% per annum on the Amount of Registrable Securities for the
first 90 days immediately following the day after such
Effectiveness Date, such Liquidated Damages increasing by an
additional 0.25% per annum at the beginning of each subsequent
90-day period; and
(iii) if a Shelf Registration has been declared effective
and such Shelf Registration ceases to be effective at any time
during the Effectiveness Period (other than as permitted under
Section 3(b) hereof), Liquidated Damages shall accrue on the
Registrable Securities at a rate of 0.25% per annum on the Amount
of Registrable Securities for the first 90 days commencing on the
day such Shelf Registration ceases to be effective, such
Liquidated Damages increasing by an additional 0.25% per annum at
the beginning of each such subsequent 90-day period;
provided, however, that Liquidated Damages on the Registrable
Securities may not accrue under more than one of the foregoing clauses
(i), (ii) or (iii) at any one time and at no time shall the aggregate
amount of Liquidated Damages accruing exceed in the aggregate 0.50% per
annum of the Amount of Registrable Securities; provided, further,
however, that (1) upon the filing of the Initial Shelf Registration as
required hereunder (in the case of clause (a)(i) of this Section 3),
(2) upon the effectiveness of the Initial Shelf Registration as
required hereunder (in the case of clause (a)(ii) of this Section 3) or
(3) upon the effectiveness of a Shelf Registration which had ceased to
remain effective (in the case of clause (a)(iii) of this Section 3),
Liquidated Damages on the Registrable Securities as a result of such
clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue. It is understood and agreed that, notwithstanding any
provision to the contrary, (x) so long as any Registrable Security is
then covered by an effective Shelf Registration Statement, no
Liquidated Damages shall accrue on such Registrable Security and (y) no
Holder of Registrable Securities shall be
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entitled to Liquidated Damages unless such Holder has complied with its
obligations to furnish the information required regarding such Holder
by the terms of this Agreement.
(b) Notwithstanding paragraph (a) of this Section 3, the Company
shall be permitted to suspend the effectiveness of a Shelf Registration
for a period not to exceed 45 days in any 90-day period, and not to
exceed an aggregate of 120 days in any 360-day period, if (i) the
Prospectus contained in such Shelf Registration Statement would, in the
Company's judgment, contain a material misstatement or omission as a
result of an event that has occurred and is continuing; and (ii) the
Company reasonably determines that the disclosure of this material
non-public information would have a material adverse effect on the
Company and its subsidiaries taken as a whole. However, if the
disclosure relates to a previously undisclosed proposed or pending
material business transaction, the disclosure of which would impede the
Company's ability to consummate such transaction, the Company may
extend the suspension period from 45 days to 60 days. Each Holder of
Registrable Securities, by its acceptance of thereof, agrees to hold
any communication by the Company in response to a notice of proposed
material pending business transaction in confidence.
(c) So long as Convertible Notes remain outstanding, the Company
shall notify the Trustee within two Business Days after each and every
date on which an event occurs in respect of which Liquidated Damages is
required to be paid. Any amounts of Liquidated Damages due pursuant to
(a)(i), (a)(ii) or (a)(iii) of this Section 3 will be payable in cash
semi-annually on each Interest Payment Date, as defined in the
Convertible Notes (each a "Damages Payment Date"), commencing with the
first such date occurring after any such Liquidated Damages commences
to accrue, to Holders to whom regular interest is payable on such
Damages Payment Date with respect to Convertible Notes that are
Registrable Securities and to Persons that are registered Holders 15
days prior to such Damages Payment Date with respect to Underlying
Shares that are Registrable Securities. The amount of Liquidated
Damages for Registrable Securities will be determined by multiplying
the applicable rate of Liquidated Damages by the Amount of Registrable
Securities outstanding on the Damages Payment Date following such
Registration Default in the case of the first such payment of
Liquidated Damages with respect to a Registration Default (and
thereafter at the next succeeding Damages Payment Date until the cure
of such Registration Default), multiplied by a fraction, the numerator
of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed), and the denominator of which
is 360.
4. Registration Procedures.
In connection with the filing of any Registration Statement
pursuant to Section 2 hereof, the Company shall effect such
registrations to permit the resale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof,
and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder the Company shall:
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(a) Prepare and file with the SEC on or prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by
Section 2 hereof, and use its reasonable best efforts to cause each
such Registration Statement to become effective and remain effective as
provided herein; provided, however, that before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Company shall furnish to and afford the Holders of the Registrable
Securities that have provided the information required by the second
full paragraph of this Section 4, Counsel (chosen in accordance with
Section 5(b) hereof) to the Holders and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents
proposed to be filed (in each case, where possible, at least five
Business Days prior to such filing, or such date as is reasonable under
the circumstances). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the
Holders of a majority in Amount of Registrable Securities that have
provided the information required by the second full paragraph of this
Section 4, Counsel to the Holders or the managing underwriters
representing such Holders, if any, shall reasonably object.
(b) Except as set forth in Section 3(b) hereof, prepare and file
with the SEC such amendments and post-effective amendments to each
Shelf Registration as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period; cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) promulgated under
the Securities Act; and comply with the provisions of the Securities
Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as
so amended or in such Prospectus as so supplemented. The Company shall
be deemed not to have used its reasonable best efforts to keep a
Registration Statement effective during the Effectiveness Period if it
voluntarily takes any action that would result in selling Holders of
the Registrable Securities covered thereby not being able to sell such
Registrable Securities during that period unless such action is
required by applicable law or unless the Company complies with this
Agreement, including, without limitation, the provisions of Sections
3(b) and 4(k) hereof.
(c) Notify the selling Holders of Registrable Securities, a
single Counsel to the Holders (chosen in accordance with Section 5(b)
hereof) and the managing underwriters, if any, promptly (but in any
event within two Business Days) and, if requested by such persons,
confirm such notice in writing, (i) when a Prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act (including
in such notice a statement that any Holder may, upon request, obtain,
at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules), (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary
Prospectus or the initiation of any proceedings for that purpose,
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(iii) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it
will 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, in light of the circumstances under which
they were made, not misleading, and that in the case of the Prospectus,
it will 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, in the light of the circumstances under
which they were made, not misleading and (iv) of the Company's
determination that a post-effective amendment to a Registration
Statement or the filing of a Prospectus Supplement would be
appropriate.
(d) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus and, if
any such order is issued, to use its reasonable best efforts to obtain
the withdrawal of any such order at the earliest possible moment.
(e) In the event of an underwritten offering pursuant to the
terms of this Agreement, if requested by the managing underwriter or
underwriters, if any, or the Holders of the majority in Amount of
Registrable Securities being sold in connection with such underwritten
offering (i) promptly incorporate in a Prospectus supplement or, if
required, a post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders or counsel for any
of them reasonably determine is necessary to be included therein, (ii)
make all required filings of such Prospectus supplement or such
post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment and (iii)
supplement or make amendments to such Registration Statement.
(f) Furnish to each selling Holder of Registrable Securities a
single Counsel to the Holders and each managing underwriter, if any,
who so requests, at the sole expense of the Company, one conformed copy
of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules.
(g) Deliver to each selling Holder of Registrable Securities, a
single Counsel to the Holders and the underwriters, if any, at the sole
expense of the Company, as many copies of the Prospectus (including
each form of preliminary Prospectus) and each amendment or supplement
thereto as such Persons may reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Securities and
the
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underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
use its reasonable best efforts to register or qualify, to the extent
required by applicable law, and to cooperate with the selling Holders
of Registrable Securities, the managing underwriter or underwriters, if
any, and their respective counsel in connection with the registration
or qualification (or exemption from such registration or qualification)
of such Registrable Securities or offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any
selling Holder, or the managing underwriter or underwriters, if any,
reasonably request; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the applicable Registration Statement; provided, however, that the
Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) Cooperate with the selling Holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing shares of
Registrable Securities to be sold, which certificates, when such
Registrable Securities are sold pursuant to the Shelf Registration
Statement, shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such shares of Registrable Securities to be in such denominations and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by any Shelf Registration Statement to be registered
with or approved by such other governmental agencies or authorities in
the United States as may be reasonably necessary to enable the seller
or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities, except as
may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such registration and the
granting of such approvals.
(k) Upon the occurrence of any event contemplated by paragraph
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable
prepare and (subject to Section 4(a) and Section 3(b) hereof) file with
the SEC, at the sole expense of the Company, a supplement or
post-effective amendment to the Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be
incorpo
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rated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, any such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the
Trustee with certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and (ii) provide
required CUSIP numbers for the Registrable Securities.
(m) In connection with any underwritten offering of Registrable
Securities pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of securities
similar to the Registrable Securities and take all such other actions
as are reasonably requested by the managing underwriter or underwriters
in order to expedite or facilitate the registration or the disposition
of such Registrable Securities and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
as such managing underwriter or underwriters reasonably request with
respect to the business of the Company and its subsidiaries (including
any acquired business, properties or entity, if applicable) and the
Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings
of securities similar to the Registrable Securities and confirm the
same in writing if and when requested; (ii) obtain the written opinion
of counsel to the Company and written updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of
securities similar to the Registrable Securities and such other matters
as may be reasonably requested by the managing underwriter or
underwriters; and (iii) obtain "cold comfort" letters and updates
thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified
public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of securities similar
to the Registrable Securities and such other matters as reasonably
requested by the managing underwriter or underwriters as permitted by
the Statement on Auditing Standards No. 72. The above shall be done as
and to the extent required by such underwriting agreement.
(n) Make available for inspection by any selling Holder of such
Registrable Securities being sold, any underwriter participating in any
such disposition of Registrable Securities, if any, and any attorney,
accountant or other agent retained by any
-11-
such selling Holder, or underwriter (collectively, the "Inspectors"),
at the offices where normally kept, during reasonable business hours at
such time or times as shall be mutually convenient for the Company and
the Inspectors as a group, all financial and other records, pertinent
corporate documents and instruments of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement. Records that
the Company determines, in good faith, to be confidential and any
Records that it notifies the Inspectors are confidential shall not be
disclosed by any Inspector unless (i) the disclosure of such Records is
necessary to avoid or correct a material misstatement or material
omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction, (iii) disclosure of such information is, in
the opinion of counsel for any Inspector, necessary or advisable in
connection with any action, claim, suit or proceeding directly
involving or potentially involving such Inspector and arising out of,
based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the
information in such Records has been made generally available to the
public other than through the acts of such Inspector or as a result of
a breach of this Agreement; provided, however, that prior notice shall
be provided as soon as practicable to the Company of the potential
disclosure of any information by such Inspector pursuant to clause (i),
(ii) or (iii) of this sentence to permit the Company to obtain a
protective order (or waive the provisions of this paragraph (n)) and
that such Inspector shall take such actions as are reasonably necessary
to protect the confidentiality of such information (if practicable) to
the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of any
Holder or Inspector.
(o) Provide (i) the Holders of the Registrable Securities to be
included in such Registration Statement and not more than one Counsel
to the Holders (ii) the underwriters (which term, for purposes of this
Registration Rights Agreement, shall include a Person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act),
if any, thereof, (iii) the sales or placement agent, if any, thereof,
and (iv) one counsel for such underwriters or agents, reasonable
opportunity to participate in the preparation of such Registration
Statement, each Prospectus included therein or filed with the SEC, and
each amendment or supplement thereto.
(p) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of
-12-
the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(q) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD"), including, if the Conduct Rules of the NASD or any successor
thereto as amended from time to time so require, engaging a "qualified
independent underwriter" ("QIU") as contemplated therein and making
Records available to such QIU as though it were a participating
underwriter for the purposes of Section 4(n) and otherwise applying the
provisions of this Agreement to such QIU (including indemnification) as
though it were a participating underwriter.
(r) Cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement relating to
the Registrable Securities; and in connection therewith, cooperate with
the Trustee and the Holders of the Registrable Securities 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.
(s) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
Each Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall furnish to the Company in writing, within 20
Business Days after receipt of a request therefor as set forth in a
questionnaire in the form attached hereto as Annex A, such information regarding
such Holder and the proposed distribution by such Holder of its Registrable
Securities as the Company may reasonably request for use in connection with the
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. Holders that do not complete the questionnaire and deliver it to the
Company shall not be named as selling securityholders in the Prospectus or
preliminary Prospectus included in the Shelf Registration Statement and
therefore shall not be permitted to sell any Registrable Securities pursuant to
the Shelf Registration Statement. Each Holder who intends to be named as a
selling Holder in the Shelf Registration Statement shall promptly furnish to the
Company in writing such other information as the Issuer may from time to time
reasonably request in writing. Each seller as to which any Shelf Registration is
being effected agrees to furnish promptly to the Company all information
required to be disclosed so that the information previously furnished to the
Company by such seller is not materially misleading and does not omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made.
-13-
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(b), 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(b) or Section 4(k) hereof, as the
case may be, or until it is advised in writing by the Company that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company,
including, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses of compliance with state securities or
Blue Sky laws (including, without limitation, reasonable fees and disbursements
of counsel in connection with Blue Sky qualifications of the Registrable
Securities and determination of the eligibility of the Registrable Securities
for investment under the laws of such jurisdictions as provided in Section 4(h)
hereof) and excluding fees with respect to filings required to be made with the
NASD in connection with an underwritten offering, (ii) printing expenses,
including, without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
of printing Prospectuses if the printing of Prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Holders of the majority
in Amount of Registrable Securities included in any Registration Statement,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) fees and disbursements of all independent certified
public accountants referred to in Section 4(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) fees and expenses of all
other Persons retained by the Company, (viii) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
if applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, and any other documents necessary in
order to comply with this Agreement (other than underwriting agreements and
securities sales agreements).
Notwithstanding anything in this Agreement to the contrary, each Holder shall
pay all underwriting discounts and brokerage commissions with respect to any
Registrable Securities sold by it.
(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a majority
in Amount of Registrable Securities to be included in such Registration
Statement ("Counsel to the Holders").
-14-
6. Indemnification.
The Company agrees to indemnify and hold harmless (i) each Initial
Purchaser, (ii) each Holder, (iii) each Person, if any, who controls (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act) any of the foregoing (any of the Persons referred to in this clause (iii)
being hereinafter referred to as a "controlling person"), (iv) the respective
officers, directors, partners, employees, representatives and agents of the
Initial Purchasers, the Holders or any controlling person (any person referred
to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an
"Indemnified Holder"), from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, reasonable legal fees
and other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary Prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Holder furnished to the Company in writing by such Holder expressly for use
therein; provided, however, that the Company shall not be liable to any
Indemnified Holder under the indemnity agreement of this Section 6 with respect
to any preliminary Prospectus to the extent that any such loss, claim, damage,
liability, judgment or expense of such Indemnified Holder results from the fact
that such Indemnified Holder sold Registrable Securities under a Registration
Statement to a Person as to whom it shall be established that there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (or of the preliminary Prospectus as then amended or supplemented if
the Company shall have furnished such Indemnified Holder with such amendment or
supplement thereto on a timely basis), and the loss, claim, damage, liability or
expense of such Indemnified Holder results from an untrue statement or omission
of a material fact contained in the preliminary Prospectus which was corrected
in the Prospectus (or in the preliminary Prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto, as the case may be, on a timely basis).
The Company shall notify the Indemnified Holder promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation) or litigation in connection with the matters addressed by this
Agreement which involves the Company or such Indemnified Holder.
Each Holder and each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, officers,
partners, employees, representatives and agents and each Person who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Holder, but only with reference to information relating to a
Holder furnished to the Company in writing by such Holder expressly for use in
any Registration Statement or Prospectus, or any amendment or supplement thereto
or any related preliminary Prospectus.
-15-
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) such
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) such Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to such Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include an Indemnifying Person and an Indemnified Person and
the Indemnified Person reasonably concludes, based upon the advice of legal
counsel, that representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that an Indemnifying Person shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Indemnified
Holders shall be designated in writing by the Holders of the majority in Amount
of Registrable Securities, and any such separate firm for the Company, its
directors, officers and such control Persons of the Company shall be designated
in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
such Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 6 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages, liabilities or judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Indemnifying Person on the one
hand, and the Indemnified Person on the other hand, pursuant to the Purchase
Agreement and from the offering of the Registrable Securities pursuant to any
Shelf Registration 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
-16-
only the relative benefits referred to in clause (i) above but also the relative
fault of the Indemnifying Person on the one hand, and the Indemnified Person on
the other, in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand, and any Indemnified Holder on the other, shall be deemed to be in the
same proportion as the total net proceeds from the initial offering and sale of
Convertible Notes (before deducting expenses) received by the Company bear to
the total net proceeds received by such Indemnified Holder from sales of
Registrable Securities giving rise to such obligations. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
Each of the Company and the Initial Purchasers agrees 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 that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall any Holder
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages which
such Holder would have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
The indemnity and contribution agreements 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 Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling the Company
and (iii) acceptance of and payment for any of the Registrable Securities by the
Initial Purchasers.
7. Rules 144 and 144A.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC there
-17-
under in a timely manner in accordance with the requirements of the Securities
Act and the Exchange Act and, for so long as any Registrable Securities remain
outstanding, if at any time the Company is not required to file such reports, it
will, upon the request of any Holder or beneficial owner of Registrable
Securities, make available such information necessary to permit sales pursuant
to Rule 144A under the Securities Act. The Company further covenants that, for
so long as any Registrable Securities remain outstanding, it will use its
reasonable best efforts to take such further action as any Holder of Registrable
Securities 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 limitation of the exemptions provided by (a) Rule
144(k) and Rule 144A under the Securities Act, as such rules may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by the
SEC. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of the majority in Amount of Registrable Securities to be
included in such offering and will be reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that would prevent the
Company from satisfying its obligations hereunder or that would otherwise
conflict with the provisions hereof, other than the warrant agreement dated as
of January 10, 2001, by and between the company and PharmaBio Development, Inc.,
as amended and restated pursuant to the Amended and Restated Alliance Agreement
- - Natrecor (Nesiritide), made as November 1, 2001, by and between the Company
and Innovex L.P.. The Company has not entered and will not enter into any
agreement with respect to any of its securities that will grant to any Person
piggyback registration rights with respect to a Registration Statement, other
than such rights that have been waived.
(b) Adjustments Affecting Registrable Securities. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that
-18-
would adversely affect the ability of the Holders of Registrable Securities to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and the Holders of not less than the majority in Amount
of Registrable Securities. 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 Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority in Amount
of the Registrable Securities being sold by such Holders pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day courier or facsimile:
(1) if to a Holder of the Registrable Securities, at the most
current address of such Holder set forth on the records of the
registrar under the Indenture, in the case of Holders of Convertible
Notes, and the stock ledger of the Company, in the case of Holders of
common stock of the Company.
(2) if to the Initial Purchasers:
J.P. MORGAN SECURITIES INC.
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORPORATION
c/o J.P. Morgan Securities Inc.
277 Park Avenue
19th Floor
New York, New York 10172
Attention: Syndicate Department
with copies to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
Facsimile No.: (650) 849-7400
Attention: Robert J. Brigham
-19-
(3) if to the Company, at the addresses as follows:
Scios Inc.
820 West Maude Avenue
Sunnyvale, California 94085
Facsimile No.: (408) 616-8319
Attention: Matthew R. Hooper, General Counsel
with copies to:
Latham & Watkins
505 Montgomery Street
Suite 1900
San Francisco, California 94111
Facsimile No.: (415) 395-8095
Attention: Kimberly L. Wilkinson
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day courier; and when receipt is acknowledged
by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
Notwithstanding the foregoing, if the Company consolidates or merges into any
other person in a transaction in which the Company is not the surviving
corporation, or conveys, transfers or leases its properties and assets
substantially as an entirety to, any person, then the successor entity shall
assume the Company's obligations under this Agreement. If any transferee of any
Holder shall acquire Registrable Securities in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
person shall be entitled to receive the benefits hereof.
(f) 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 an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
-20-
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction 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, 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 is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage in Amount 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) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Securities are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(l) Entire Agreement. This Agreement is intended by the parties as a
final and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand, and the Company on the other, or between or among
any agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof are
merged herein and replaced hereby.
-21-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SCIOS INC.
By: /s/ David W. Gryska
---------------------------------------
Name: David W. Gryska
Title: CFO
J.P. MORGAN SECURITIES INC.
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORPORATION
NEEDHAM & COMPANY, INC.
ADAMS, HARKNESS & HILL, INC.
PRUDENTIAL SECURITIES INCORPORATED
By: J.P. MORGAN SECURITIES INC.
By: /s/ Michael R. Harris
----------------------------------
Name: Michael R. Harris
Title: Vice President
-22-