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EXHIBIT 10.13
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of December 13,
2001. by and between Silicon Valley Bank (the "Bank") and GATX Ventures, Inc.
("GATX") (individually, each of the Bank and GATX are sometimes referred to
herein as a "Purchaser", and the Bank and GATX are collectively sometimes
referred to herein as the "Purchasers") and TolerRx, Inc., a Delaware
corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, each Purchaser is
acquiring from the Company a Warrant to Purchase Stock (the "Warrant") pursuant
to which Purchaser has rights to acquire from the Company the Shares (as defined
in each Warrant), which Shares when issued shall be either shares of the
Company's common stock, $.01 par value per share ("Common Stock") or shares that
are convertible into shares of Common Stock ("Conversion Shares").
B. By this Agreement, the Purchasers and the Company desire to set forth
the registration rights of the Conversion Shares or the Shares all as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises, covenants and conditions hereinafter set forth, the parties hereto
mutually agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) 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, and the rules and regulations thereunder (the "Securities Act"), and
the declaration or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means (i) (A) the
Conversion Shares, or (B) the Shares, at any time when the Shares are shares of
Common Stock, and (ii) any Common Stock or other securities of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, the Shares or Conversion Shares.
(c) The terms "Holder" or "Holders" means the Purchasers and
each such entity's qualifying transferees under Section 1.9 hereof who hold
Registrable Securities.
(d) The term "SEC" means the Securities and Exchange
Commission.
(e) The terms "Form S-1," "Form S-3" etc. shall mean those
forms with such designations as are required by the SEC and any successor or
replacement forms adopted by the SEC.
1.2 COMPANY REGISTRATION.
(a) REGISTRATION. If at any time or from time to time, the
Company shall determine to register any of its securities, for its own account
or the account of any of its shareholders, other than a registration on Form S-1
with respect to the Company's initial public offering. Form S-8 relating solely
to employee stock option or purchase plans, and/or on Form S-4 relating solely
to an SEC Rule 145 transaction, the Company will:
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(i) promptly give to each Holder written notice thereof
(which shall ?? a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under applicable blue sky or other state
securities laws); and
(ii) include in such registration (and qualifications),
and in any ?? writing involved therein, all the Registrable Securities specified
in a written request or requests, made within 30 days after receipt of such
written notice from the Company, by any Holder or Holders, except as set forth
in subsection 1.2(c) below.
(b) UNDERWRITING. If the registration of which the Company
gives notice is for ? registered public offering involving a firm-commitment
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to subsection 1.2(a)(i). In such event the right of any
Holder to registration pursuant to this subsection 1.2 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other shareholders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form (and not inconsistent with the terms
hereof) with the underwriter or underwriters selected for such underwriting by
the Company.
(c) In the case of any registration of Common Stock by the
Company in a firm-commitment underwriting, if the managing underwriters give
written advice to the Company that marketing factors require a limitation on the
number of shares of Common Stock (or other securities convertible into or
exercisable or exchangeable for Common Stock) to be offered and sold by
stockholders of Company in such offering, there shall be included in the
offering: (i) first, all securities proposed by Company to be sold for its
account; and (ii) second, that number of shares of Common Stock, if any,
requested to be included in such registration statement by Holders and by
stockholders of the Company having contractual rights to include shares in such
registration, on a pro rata basis based upon the number of shares of Common
Stock each Holder and each such stockholder beneficially owns.
1.3 REGISTRATION ON FORM S-3. If at any time (i) a Holder of
Registrable Securities requests in writing that the Company file a registration
statement on Form S-3 or any successor thereto for a public offering of all or
any portion of the shares of Registrable Securities held by the requesting
Holder, (ii) the aggregate price to the public of such offering would reasonably
be expected to exceed $200,000, and (iii) the Company is a registrant entitled
to use Form S-3 or any successor thereto to register such shares, then the
Company shall use its best efforts to register under the Securities Act on Form
S-3 or any successor thereto, for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Registrable
Securities specified in such notice. Whenever the Company is required by this
Section 1.3 to use its best efforts to effect the registration of Registrable
Securities, each of the procedures and requirements of Sections 1.5(d) and 1.8
(as applicable) shall apply to such registration; PROVIDED, HOWEVER, that the
Company shall not be obligated to register Registrable Securities under this
Section 1.3 on more than one occasion in any six-month period.
1.3A SUSPENSION/LIMITS. The Company shall not be obligated to
file and cause to become effective more than two (2) registration statements in
which Registrable Securities are registered under the Securities Act pursuant to
Section 1.3. Notwithstanding anything in this Section 1 to the contrary, if the
Company shall furnish to the holders of Registrable Securities who request
registration hereunder a certificate signed by the President or Chief Executive
Officer of the Company stating that the Board of Directors of the Company has
made a good faith determination (i) that use or continued use by the holders of
the registration statement filed by the Company pursuant to this Section 1 for
purposes of effecting offers or sales of Registrable Securities pursuant hereto
would require, under the Securities Act and the rules and regulations
promulgated thereunder, premature disclosure in the registration statement (or
the prospectus
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relating thereto) of material, nonpublic information concerning the Company;
(ii) that such premature disclosure would be materially adverse to the Company,
its business or prospects or any such proposed material transaction would make
the successful consummation by the Company of any such material transaction
significantly less likely and (iii) that it is therefore essential to delay or
suspend the use by the holders of such registration statement (and the
prospectus relating thereto) for purposes of effecting offers or sales of
Registrable Securities pursuant thereto, then the right of the holders to use
such registration statement (and the prospectus relating thereto) for purposes
of effecting offers or sales of Registrable Securities pursuant thereto shall be
delayed and/or suspended for a period (the "Suspension Period") of not more than
90 days after the delivery by the Company of the certificate referred to above
in this Section 1.3A. During the Suspension Period, the Company shall not be
obligated to file any registration statement and/or the holders shall not offer
or sell any Registrable Securities pursuant to or in reliance upon such
registration statement (or the prospectus relating thereto). The Company agrees
that, as promptly as practicable after the consummation, abandonment or public
disclosure of the event or transaction that caused the Company to delay or
suspend the use of the registration statement (and the prospectus relating
thereto), the Company will provide the holders with revised prospectuses, if
required, and will notify the investors of their ability to effect offers or
sales of Registrable Shares pursuant to or in reliance upon such registration
statement.
1.3B LOCK-UP. Each holder of Registrable Securities hereby
agrees that, at the written request of any managing underwriter of an
underwritten initial public offering of securities of the Company in connection
with the Company' initial public offering of securities, such holder shall not,
without the prior written consent of such managing underwriter, sell, assign,
transfer, make a short sale of, loan, grant any option for the purchase of,
pledge, hypothecate, encumber or otherwise convey or dispose of, or exercise
registration rights with respect to any Registrable Securities for such period
of time, not to exceed 180 days after the closing of such underwritten initial
public offering, as the Company or such managing underwriter shall request,
provided that all officers and directors, and all stockholders of the Company
holding more than 3% of the Company's capital stock on a fully-diluted basis are
similarly bound. The Company shall use commercially reasonable best efforts to
place similar contractual lockup restrictions on all capital stock issued now or
hereafter to officers, directors, employees and consultants of the Company and
holders of registration rights with respect to capital stock of the Company. If
a waiver or partial or total release from such a lock-up agreement, with respect
to any securities of the Company, is given to any officer, director or any
holder of more than 3% of the Company's capital stock on a fully diluted basis,
that is party to such an agreement, then (i) the Company shall immediately
notify the Holder, and (ii) the Holder shall be deemed immediately and
automatically released from this lock-up provision and any other lock-up
agreement with the Company.
1.4 EXPENSES OF REGISTRATION. All expenses incurred in connection
with any registration, qualification or compliance pursuant to this Section 1
including without limitation, all registration, filing and qualification fees,
printing expenses, underwriting fees, discounts and commissions, fees and
disbursements of counsel for the Company and expenses of any special audits
incidental to or required by such registration, shall be borne by the Company.
All expenses of any registered offering not otherwise borne by the Company will
be borne pro rata among the Holders, any other shareholders of the Company
participating in such offering and the Company.
1.5 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Registration Rights Agreement, the Company will keep each Holder participating
therein advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. At its expense
the Company will:
(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,
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upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to 120
days (the "Effective Period").
(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 Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(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
Holders, 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. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement provided that all other shareholders of the
Company participating in such offering do the same.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or 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.
1.6 INDEMNIFICATION.
(a) The Company will indemnify each Holder of Registrable
Securities and each of its officers, directors and partners, and each person
controlling such Holder within the meaning of Section 15 of the Securities Act
("controlling person"), and each underwriter, if any, and each controlling
person of such underwriter, with respect to which registration, qualification or
compliance of Registrable Securities has been effected pursuant to this
Registration Rights Agreement, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereto) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, or any violation or
alleged violation by the Company of the Securities Act, the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder ("Exchange
Act") or any state securities law applicable to the Company or any rule or
regulation promulgated any such state law and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, within a
reasonable amount of time after incurred for any reasonable legal and any other
expenses incurred in connection with investigating, defending or settling any
such claim, loss, damage, liability or action; PROVIDED, HOWEVER, that the
indemnity
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agreement contained in this subsection 1.6(a) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld or delayed); AND PROVIDED FURTHER, that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage or liability arises out of or is based on any untrue statement or
omission made in reliance upon and conformity with written information furnished
to the Company by an instrument duly executed by such Holder specifically for
use therein.
(b) Each Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers and controlling persons, each
underwriter, if any, of the Company's securities covered by such a registration
statement, and each controlling person of such underwriter, and each other
Holder, each of its officers, directors, partners and controlling persons,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, partners, persons or
underwriters for any reasonable legal or any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein; PROVIDED, HOWEVER, that the indemnity agreement
contained in this subsection 1.6(b) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if such
settlement is effected without the consent of the Holder, (which consent shall
not be unreasonably withheld or delayed); AND PROVIDED FURTHER, that the total
amount for which any Holder shall be liable under this subsection 1.6(b) shall
not in any event exceed the aggregate proceeds received by such Holder from the
sale of Registrable Securities held by such Holder in such registration.
(c) Each party entitled to indemnification under this
subsection 1.6 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense; and provided further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, unless such failure resulted
in prejudice to the Indemnifying Party; and provided further, 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. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
1.7 INFORMATION BY HOLDER. Any Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to herein.
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1.8 RULE 144 REPORTING AND FORM S-3. With a view to making available
to Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without registration
or pursuant to a registration on Form S-3, the Company agrees at all times to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, after 90 days after the effective
date of the first registration filed by the Company for an offering of its
securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Company for the offering
of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and
(d) so long as a Holder owns any Registrable Securities, to
furnish to such Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), or that it qualify as a registrant
whose securities may be resold pursuant to S-3 (at any time after it so
qualifies), a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents so filed by the Company as the Holder may
reasonably request in complying with any rule or regulation of the SEC allowing
the Holder to sell any such securities without registration or pursuant to such
form.
1.9 TRANSFER OF REGISTRATION RIGHTS. Each Holder's rights to cause
the Company to register their securities and keep information available, granted
to them by the Company under subsections 1.2, 1.3 and 1.8 may be assigned to a
transferee or assignee of a Holder's Registrable Securities not sold to the
public, provided, that the Company is given written notice by such Holder at the
time of or within a reasonable time after said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned.
2. GENERAL.
2.1 WAIVERS AND AMENDMENTS. With the written consent of the record
or beneficial holders of at least a majority of the Registrable Securities, the
obligations of the Company and the rights of the Holders of the Registrable
Securities under this agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such modification, amendment or waiver shall reduce
the aforesaid percentage of Registrable Securities without the consent of all of
the Holders of the Registrable Securities. Upon the effectuation of each such
waiver, consent, agreement of amendment or modification, the Company shall
promptly give written notice thereof to the record holders of the Registrable
Securities who have not previously consented thereto in writing. This Agreement
or any provision hereof may be changed, waived, discharged or terminated only by
a statement
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in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, except to the extent provided in this
subsection 2.1.
2.2 GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the Commonwealth of Massachusetts as such laws are applied to
agreements between Massachusetts residents entered into and to be performed
entirely within Massachusetts.
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.4 ENTIRE AGREEMENT. Except as set forth below, this Agreement and
the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid certified or registered mail, return receipt requested,
addressed (a) if to Holder, at such Holder's address(es) as set forth below, or
at such other address(es) as such Holder shall have furnished to the Company in
writing, or (b) if to the Company, at the Company's address set forth below, or
at such other address as the Company shall have furnished to the Holder in
writing.
2.6 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement or any provision of the other
Agreement's shall not in any way be affected or impaired thereby.
2.7 TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
PURCHASERS COMPANY
SILICON VALLEY BANK TOLERRX, INC.
By: /s/ Michelle Giannini By: /s/ Douglas J. Ringler
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Name: Michelle Giannini Name: Douglas J. Ringler
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Title: Vice President Title: Chief Executive Officer
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Address: 3003 Tasman Drive Address: 675 Massachusetts Avenue
Santa Clara, California 95054 Cambridge,
Massachusetts 02139
GATX VENTURES, INC.
By: /s/ Robert D. Pomeroy, Jr.
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Name: Robert D. Pomeroy, Jr.
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Title: Senior Vice President
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Address: 3687 Mt. Diablo Blvd, Suite 200
Lafayette, CA 94549
6771504
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