Exhibit 10.31

 

 

 

REGISTRATION RIGHTS AGREEMENT

by and Between

SANGSTAT MEDICAL CORPORATION

AND 

BIOPHARMA EQUITIES HOLDINGS NV

 

____________________

 

February 15, 2000

___________________

REGISTRATION RIGHTS AGREEMENT

 

	THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as ofFebruary 15, 2000 is by and among SangStat Medical Corporation, a Delawarecorporation (the "Company") and BioPharma Equities Holdings NV (the"Investor").

	WHEREAS, the Company is entering into the Common Stock Purchase Agreementof even date herewith (the "Purchase Agreement") with the Investor pursuant towhich the Investor is purchasing shares of the Company's Common Stock (the"Common Stock");

	WHEREAS, the Company and the Investor desire to provide for the Investorcertain arrangements with respect to the registration of shares of capital stockof the Company under the Securities Act of 1933.

		NOW, THEREFORE, in consideration of the mutual promises, covenantsand conditions hereinafter set forth and other good and valuable consideration,the parties hereto hereby agree as follows:

**Registration Rights
.  The Companycovenants and agrees as follows:
Definitions
.  As used in thisAgreement, the following terms shall have the following meanings:
- " Securities Act " means the Securities Act of 1933, as amended.
- " 1934 Act " means the Securities Exchange Act of 1934, asamended.
- " Form S-1 " means such form under the Securities Act as in effect onthe date hereof, or any registration form under the Securities Act subsequentlyadopted by the SEC which permits the registration of securities under theSecurities Act for which no other form is authorized or prescribed.
- " Form S-3 " means such form under the Securities Act as in effect onthe date hereof or any registration form under the Securities Act subsequentlyadopted by the SEC which permits inclusion or incorporation of substantialinformation by reference to other documents filed by the Company with theSEC.
- " Holder " means the Investor and any persons or entities to whom therights granted under this Section 1 are transferred by the Investor as permittedunder Section 2 below.
- The terms " register ," " registered ," and " registration "refer to a registration effected by preparing and filing a registrationstatement or similar document in compliance with the Securities Act, and thedeclaration or ordering of effectiveness of such registration statement ordocument.
- " Registrable Securities " means (i) the Common Stock, (ii) any commonstock of the Company issued as (or issuable upon the conversion or exercise ofany warrant, right, or other security which is issued as) a dividend or otherdistribution with respect to, or in exchange for or in replacement of, theshares described in (i) above, excluding in all cases, however, any securitiesthat have been sold in a public sale or other transaction in which the rightsunder this Section 1 are not properly assigned.
- " SEC " shall mean the Securities and Exchange Commission.
Demand Registration. 
Registration
.
  The Company agreesto file as soon as practicable, and in any event on or before May 15, 2000, aregistration statement on Form S-3 (or Form S-1 in the event that the Company isnot eligible to use Form S-3) for the registration under the Securities Act ofall Registrable Securities, subject to the limitations of subsection 1.2(b).The Company shall use its best efforts to have such registration statementdeclared effective within thirty (30) days after filing.  
**Priority Registrations
.
  If amajority in interest of the Holders intend to distribute the RegistrableSecurities by means of an underwriting, they shall so advise the Company on orbefore February 29, 2000.  The underwriter will be selected by a majorityin interest of the Holders and shall be reasonably acceptable to the Company.In such event, the right of any Holder to include Registrable Securities in suchregistration shall be conditioned upon such Holder's participation in suchunderwriting and the inclusion of such Holder's Registrable Securities in theunderwriting (unless otherwise mutually agreed by a majority in interest of theHolders and such Holder) to the extent provided herein.  All Holders proposingto distribute their securities through such underwriting shall (together withthe Company as provided in subsection 1.4(e)) enter into an underwritingagreement in customary form with the underwriter or underwriters selected forsuch underwriting.  Notwithstanding any other provision of this Section 1.2, ifthe underwriter advises the Holders in writing that marketing factors require alimitation of the number of shares to be underwritten, then the number ofRegistrable Securities that may be included in the underwriting shall beapportioned among such selling Holders in proportion (as nearly as practicable)to the amount of Registrable Securities of the Company held by each Holder;provided, however, that the number of Registrable Securities to be included insuch underwriting shall not be reduced unless all other securities are firstentirely excluded from the underwriting.  Any such apportionment shall be inaccordance with the last sentence of Section 1.3(b).
"Piggy-Back" Registration.
Right to Piggy-Back
.
  If theCompany proposes to register (including for this purpose a registration effectedby the Company for stockholders other than the Holders but excluding aregistration effected by the Company pursuant to the Registration RightsAgreement dated May 7, 1999 between the Company and Abbott Laboratories)any of its securities under the Securities Act in connection with the publicoffering of such securities solely for cash (other than a registration relatingsolely to the sale of securities to participants in an employee benefit plan, ora registration on Form S-4 or any successor form relating solely to atransaction pursuant to the SEC's Rule 145), the Company shall, at such time,promptly give each Holder written notice of such registration.  Upon the writtenrequest of each Holder given within twenty (20) days after mailing of suchnotice by the Company, the Company shall, subject to the provisions ofsubsection 1.3(b), cause to be registered under the Securities Act all of theRegistrable Securities that each such Holder has requested to beregistered.
**Priority on Registrations
.
  Inconnection with any offering involving an underwriting of shares of theCompany's capital stock, the right of any Holder to include RegistrableSecurities in such registration shall be conditioned upon such Holder'sparticipation in such underwriting as agreed upon between the Company and theunderwriters selected by it (or by other persons entitled to select theunderwriters).  If the total amount of securities, including RegistrableSecurities, requested by stockholders to be included in such offering exceedsthe amount of securities to be sold (other than by the Company) that theunderwriters determine in their sole discretion is compatible with the successof the offering, then the Company shall be required to include in the offeringonly that number of such securities, including Registrable Securities, which theunderwriters determine in their sole discretion will not materially andadversely affect such offering, and the Registrable Securities to be included,if any, shall be apportioned pro rata among (i) the Holders providing notice oftheir desire to participate in the offering and (ii) all other holders of theCompany's securities who have the right to participate in such offering (the"Other Holders"), according to the total amount of securities requested to beincluded therein by each such selling Holder or Other Holder or in such otherproportions as shall mutually be agreed to by such Holders and Other Holders.For purposes of the preceding sentence concerning apportionment, for any Holderwhich is a partnership or corporation, the partners, retired partners, andstockholders of such Holder, or the estates and family members of any suchpartners and retired partners and any trusts for the benefit of any of theforegoing persons shall be deemed to be a single "selling Holder," and any pro-rata reduction with respect to such "selling Holder" shall be based upon theaggregate amount of shares carrying registration rights owned by all entitiesand individuals included in such "selling Holder," as defined in thissentence.
**Registration Procedures
.Whenever required under this Section 1 to effect the registration of anyRegistrable Securities, the Company shall, as expeditiously as reasonablypossible (but subject to providing counsel to the Holders with a reasonableopportunity to review and comment on all documents):
- Prepare and file with the SEC a registration statement which complies withthe provisions of the Securities Act and the rules and regulations of the SECthereunder with respect to such Registrable Securities within the time periodspecified by the applicable section under which the registration statement isbeing effected; thereafter use its best efforts to cause such registrationstatement to become effective; and, keep such registration statement effectivefor a period of One Hundred Eighty (180) days or, if earlier, until thedistribution contemplated in the registration statement has been completed.
- Prepare and file with the SEC such amendments and supplements to suchregistration statement and the prospectus used in connection with suchregistration statement as may be necessary to comply with the provisions of theSecurities Act with respect to the disposition of all securities covered by suchregistration statement in accordance with each Holder's intended method ofdisposition.
- Furnish to the Holders such numbers of copies of a prospectus, including apreliminary prospectus, in conformity with the requirements of the SecuritiesAct, and such other documents as they may reasonably request in order tofacilitate the disposition of Registrable Securities owned by the Holders.
- Use its best efforts to register and qualify the securities covered by suchregistration statement under such other securities or Blue Sky laws of suchjurisdictions as shall be reasonably requested by the Holders and any managingunderwriter; provided that the Company shall not be required in connectiontherewith or as a condition thereto to qualify to do business or to file ageneral consent to service of process in any such states or jurisdictions,unless the Company is already subject to service in such jurisdiction and exceptas may be required by the Securities Act.
- In the event of any underwritten public offering, enter into and perform itsobligations under an underwriting agreement, in usual and customary form, withthe managing underwriter of such offering.  Each Holder participating in suchunderwriting shall also enter into and perform its obligations under such anagreement. 
- Use its best efforts to prevent the issuance of any stop order or otherorder suspending the effectiveness of a registration statement coveringRegistrable Securities and, if such an order is issued, to obtain the withdrawalthereof at the earliest possible time and to notify the Holder of the issuanceof such order and the resolution thereof; 
- Promptly notify each Holder of Registrable Securities covered by suchregistration statement at any time when a prospectus relating thereto isrequired to be delivered under the Securities Act of the happening of any eventas a result of which the prospectus included in such registration statement, asthen in effect, includes an untrue statement of a material fact or omits tostate a material fact required to be stated therein or necessary to make thestatements therein not misleading in the light of the circumstances thenexisting.
- Cause all such Registrable Securities registered pursuant to suchregistration statement to be listed on each securities exchange on which similarsecurities issued by the Company are then listed.
- Provide a transfer agent and registrar for all Registrable Securitiesregistered pursuant to such registration statement and a CUSIP number for allsuch Registrable Securities, in each case not later than the effective date ofsuch registration.
- Furnish, on the date that such Registrable Securities are delivered to theunderwriters for sale in connection with a registration pursuant to this Section1, if such securities are being sold through underwriters, copies of (i) theopinion, dated as of such date, of the counsel representing the Company for thepurposes of such registration given to the underwriters in such underwrittenpublic offering, which opinion shall be in such form as is reasonablysatisfactory to counsel to the underwriters, and shall also be addressed to suchHolders, and (ii) the letter dated as of such date, from the independentcertified public accountants of the Company, to the underwriters in suchunderwritten public offering, addressed to the underwriters, which letter shallbe in such form as is reasonably satisfactory to counsel to theunderwriters.
**Furnish Information
.  It shall bea condition precedent to the obligations of the Company to take any actionpursuant to this Section 1 with respect to the Registrable Securities of anyselling Holder that such Holder shall furnish to the Company such informationregarding itself, the Registrable Securities held by it, and the intended methodof disposition of such securities as shall be required to effect theregistration of such Holder's Registrable Securities.
**Expenses of Registrations
.  TheCompany shall pay all expenses, other than underwriting discounts andcommissions, including reasonable attorney's fees for one counsel for anyselling Holders, incurred in connection with registrations, filings, orqualifications pursuant to this Section 1, including (i) all registration,filing, and qualification fees (including, but not limited to, filing fees withthe SEC and state securities administrators, fees due to the NationalAssociation of Securities Dealers and fees due for listing on any stock exchangeor for qualifying for quotation on the Nasdaq system; (ii) printing andaccounting fees; and (iii) fees and disbursements of counsel for theCompany.
**Indemnification
.  In the eventany Registrable Securities are included in a registration statement under thisSection 1:
By the Company
.
  The Company willindemnify each selling Holder, each of its officers and directors and partnersand each person controlling any such persons within the meaning of Section 15 ofthe Securities Act, and each underwriter, if any, and each person who controlsany underwriter within the meaning of Section 15 of the Securities Act, againstall expenses, claims, losses, damages and liabilities (or actions in respectthereof), including any of the foregoing incurred in the investigation orsettlement of any litigation, commenced or threatened, arising out of or basedon any untrue statement (or alleged untrue statement) of a material factcontained in any registration statement, prospectus, offering circular or otherdocument, or any amendment or supplement thereto, incident to any suchregistration, qualification or compliance, or based on any omission (or allegedomission) to state therein a material fact required to be stated therein ornecessary to make the statements therein, not misleading, or any violation bythe Company of any rule or regulation promulgated under the Securities Act, the1934 Act  or any state securities laws applicable to the Company and relating toaction or inaction required of the Company in connection with any suchregistration, qualification or compliance, and will reimburse each such sellingHolder and each other person indemnified hereunder for any legal and any otherexpenses reasonably incurred in connection with investigating, preparing ordefending any such claim, loss, damage, liability or action; provided that theCompany will not be liable in any such case to the extent that any such claim,loss, damage, liability, expense, or violation arises out of or is based on anyuntrue statement or omission or alleged untrue statement or omission, made inreliance upon and in conformity with written information furnished to theCompany by an instrument duly executed by such selling Holder or underwriter andstated specifically to be for use therein, or any action or inaction required ofany selling Holder in connection therewith.
**By Each Holder
.
  Each sellingHolder will indemnify the Company, each of its directors and officers, eachunderwriter, if any, of the Company's securities covered by such a registrationstatement, each person who controls the Company or such underwriter within themeaning of Section 15 of the Securities Act, and each other such person whosesecurities are covered by such registration statement, each of its officers anddirectors and each person controlling such selling Holder within the meaning ofSection 15 of the Securities Act, against all claims, losses, damages andliabilities (or actions in respect thereof) arising out of or based on anyuntrue statement (or alleged untrue statement) of a material fact contained inany such registration statement, prospectus, offering circular or otherdocument, or any omission (or alleged omission) to state therein a material factrequired to be stated therein or necessary to make the statements therein notmisleading, or any violation by such selling Holder of any rule or regulationpromulgated under the Securities Act or any state securities laws applicable tosuch selling Holder and relating to action or inaction required of such sellingHolder in connection with any such registration, qualification or compliance,and will reimburse the Company and each other person indemnified hereunder forany legal or any other expenses reasonably incurred in connection withinvestigating or defending any such claim, loss, damage, liability or action, ineach case to the extent, but only to the extent, that such untrue statement (oralleged untrue statement) or omission (or alleged omission) is made in suchregistration statement, prospectus, offering circular or other document inreliance upon and in conformity with written information furnished to theCompany by such selling Holder and stated specifically to be for use therein orsuch violation arises out of any action or inaction required of such sellingHolder in connection therewith; provided, however, that the obligation of suchselling Holder hereunder shall be limited to an amount equal to the net proceedsreceived by such selling Holder upon the sale of the Shares sold by such sellingHolder in the offering covered by such registration.
**Notice
.
  Each party entitled toindemnification under this Section 1.7 (the "Indemnified Party") shall givenotice to the party required to provide indemnification (the "IndemnifyingParty") promptly after such Indemnified Party has actual knowledge of any claimas to which indemnity may be sought, and shall permit the Indemnifying Party toassume the defense of any such claim or any litigation resulting therefrom,provided that counsel for the Indemnifying Party, who shall conduct the defenseof such claim or litigation, shall be approved by the Indemnified Party (whoseapproval shall not unreasonably be withheld).  The Indemnified Party mayparticipate in such defense at such party's expense; provided, however, that theIndemnifying Party shall bear the expense of such defense of the IndemnifiedParty if representation of both parties by the same counsel would beinappropriate due to actual or potential conflicts of interest (as determined ingood faith by the Indemnified Party).  The failure of any Indemnified Party togive notice as provided herein shall not relieve the Indemnifying Party of itsobligations under this Agreement unless the failure to do so materiallyprejudices the Indemnifying Party.  No Indemnifying Party, in the defense of anysuch claim or litigation, shall, except with the consent of each IndemnifiedParty, consent to entry of any judgment or enter into any settlement which doesnot include as an unconditional term thereof the giving by the claimant orplaintiff to such Indemnified Party of a release from all liability in respectto such claim or litigation.
**Contribution
.
  If theindemnification provided for in this Section 1.7 is unavailable or insufficientto hold harmless an Indemnified Party, then each Indemnifying Party shallcontribute to the amount paid or payable to such Indemnified Party as a resultof the losses, claims, damages or liabilities referred to in this Section 1.7 anamount or additional amount, as the case may be, in such proportion as isappropriate to reflect the relative fault of the Indemnifying Party or partieson the one hand and the Indemnified Party on the other in connection with thestatements or omissions which resulted in such losses, claims, demands orliabilities as well as any other relevant equitable considerations.  Therelative fault shall be determined by reference to, among other things, whetherthe untrue or alleged untrue statement of a material fact or the omission oralleged omission to state a material fact relates to information supplied by theIndemnifying Party or parties on the one hand or the Indemnified Party on theother and the parties' relative intent, knowledge, access to information andopportunity to correct or prevent such untrue statement or omission.  The amountpaid to an Indemnified Party as a result of the losses, claims, damages orliabilities referred to in the first sentence of this Section 1.7(d) shall bedeemed to include any legal or other expenses reasonably incurred by suchIndemnified Party in connection with investigating or defending any action orclaim that is the subject of this Section 1.7.  No Person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of the Securities Act)shall be entitled to contribution from any Person who was not guilty of suchfraudulent misrepresentation.
**Survival
.
  The obligations of theCompany and Holders under this Section 1.7 shall survive the completion ofany offering of Registrable Securities in a registration statement under thisSection 1.
**Rule 144 Reporting
.  With a viewto making available to the Holders the benefits of Rule 144 promulgated underthe Securities Act and any other rule or regulation of the SEC that may at anytime permit a Holder to sell securities of the Company to the public withoutregistration or pursuant to a registration on Form S-3, the Company agrees touse its best efforts to:
- Make and keep public information available, as those terms are understoodand defined in SEC Rule 144 under the Securities Act;
- File with the SEC in a timely manner all reports and other documentsrequired of the Company under the Securities Act and the 1934 Act; and
- Furnish to any Holder, so long as the Holder owns any RegistrableSecurities, forthwith upon request (i) a written statement by the Company thatit has complied with the reporting requirements of SEC Rule 144, the SecuritiesAct and the 1934 Act, (ii) a copy of the most recent annual or quarterly reportof the Company and such other reports and documents so filed by the Company, and(iii) such other information as may be reasonably requested in availing anyHolder of any rule or regulation of the SEC which permits the selling of anysuch securities without registration or pursuant to Form S-3.
**Termination of RegistrationRights
.  Each Holder's rights to require registration ofRegistrable Securities held by it as provided for in this Section 1 shallterminate with respect to such Holder upon the earliest to occur of (i) when allsuch Registrable Securities held by such Holder have been sold in a publicoffering pursuant to an effective registration statement under the SecuritiesAct, (ii) when all such Registrable Securities held by such Holder may be soldin a public sale or sales within any three-month period consistent with theSecurities Act and the SEC's Rules thereunder and (iii) February 15,2002.
Transfers Of Rights.
- The rights granted to the Investor under Section 1 of this Agreement may betransferred to (i) any Affiliate, subsidiary, partner, member or shareholder ofthe Investor or (ii) any other person or entity that acquires at least fiftypercent (50%) of the Registrable Securities; provided, however, that thetransferee shall have executed an instrument satisfactory to the Companyagreeing to be bound by the obligations of his or its transferor under thisAgreement.
- A transferee to whom rights are transferred pursuant to this Section 2 maytransfer such rights to any other person or entity, as provided in Section 2.1above.
- Each certificate representing the shares of Common Stock shall bear a legendin substantially the following form, in addition to any other legends that maybe required under federal or state securities laws:

		"The shares of stock represented by this certificate are subject to acertain Investor Rights Agreement, as amended from time to time, among thecorporation, the registered owner of this certificate (or his predecessor ininterest) and others, and such Agreement is available for inspection withoutcharge at the offices of the corporation."
General.
Notices
.  All notices, requests,consents and other communications under this Agreement shall be in writing andshall be delivered by hand, by telecopier, by overnight mail or mailed by firstclass certified or registered mail, return receipt requested, postageprepaid:

if to the Company:	SangStat Medical Corporation

Attn:  Vice President and General Counsel6300 Dumbarton CircleFremont, CA 94555Facsimile: (510) 789-4493

with a copy to:	Gray Cary Ware & Freidenrich LLP

Attn:  Rebecca K. Schmitt Esq.4365 Executive Drive, Suite 1600San Diego, California 92121Facsimile: (858) 677-1477

 

if to the Investor:	BioPharma Equities Holdings NV**************************