exv4w9



 






Exhibit 4.9




COMMON STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT




by and between




ARCHEMIX CORP.




and




MERCK KGaA




Dated as of [_____________]




 









 





Table Of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 1 Definitions	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 2 Authorization, Purchase and Sale of the Shares	 	 	3	 
	 
	 	 	 	 	 	 
	2.1
	 	Purchase and Sale of the Shares	 	 	3	 
	2.2
	 	Closing	 	 	3	 
	 
	 	 	 	 	 	 
	SECTION 3 Representations and Warranties and Certain Covenants of the Company	 	 	3	 
	 
	 	 	 	 	 	 
	3.1
	 	Organization, Qualifications and Corporate Power	 	 	4	 
	3.2
	 	Authorization of Agreements, Etc	 	 	4	 
	3.3
	 	Validity	 	 	4	 
	3.4
	 	Consents	 	 	4	 
	3.5
	 	Subsidiaries	 	 	5	 
	3.6
	 	Capitalization	 	 	5	 
	3.7
	 	Litigation	 	 	5	 
	3.8
	 	Financial Statements	 	 	5	 
	3.9
	 	Taxes	 	 	5	 
	3.10
	 	Intellectual Property	 	 	5	 
	3.11
	 	Brokers	 	 	6	 
	3.12
	 	Insurance	 	 	6	 
	 
	 	 	 	 	 	 
	SECTION 4 Representations and Warranties of Purchaser	 	 	6	 
	 
	 	 	 	 	 	 
	4.1
	 	Experience	 	 	6	 
	4.2
	 	Investment	 	 	6	 
	4.3
	 	Rule 144	 	 	6	 
	4.4
	 	Access to Data	 	 	6	 
	4.5
	 	Brokers	 	 	6	 
	4.6
	 	Authorization	 	 	6	 
	 
	 	 	 	 	 	 
	SECTION 5	 	 	7	 
	 
	 	 	 	 	 	 
	5.1
	 	“Piggyback” Registration	 	 	7	 
	5.2
	 	Furnish Information	 	 	8	 
	5.3
	 	Sale or Transfer of Shares; Legend	 	 	8	 
	5.4
	 	Indemnification	 	 	9	 
	5.5
	 	Assignment of Registration Rights	 	 	11	 
	5.6
	 	“Market Stand-Off” Agreement	 	 	11	 
	5.7
	 	Termination of Registration Rights	 	 	12	 
	 
	 	 	 	 	 	 
	SECTION 6 Purchaser’s Conditions to Closing	 	 	12	 






(i)









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	6.1
	 	Representations and Warranties	 	 	12	 
	6.2
	 	Performance	 	 	12	 
	6.3
	 	Legal Investment	 	 	12	 
	6.4
	 	Proceedings and Documents	 	 	12	 
	6.5
	 	Qualifications	 	 	12	 
	 
	 	 	 	 	 	 
	SECTION 7 Company’s Conditions to Closing	 	 	13	 
	 
	 	 	 	 	 	 
	7.1
	 	Representations and Warranties	 	 	13	 
	7.2
	 	Performance	 	 	13	 
	7.3
	 	Legal Investment	 	 	13	 
	7.4
	 	Payment of Purchase Price	 	 	13	 
	 
	 	 	 	 	 	 
	SECTION 8 Miscellaneous	 	 	13	 
	 
	 	 	 	 	 	 
	8.1
	 	Governing Law	 	 	13	 
	8.2
	 	Survival	 	 	13	 
	8.3
	 	Successors and Assigns	 	 	13	 
	8.4
	 	Entire Agreement; Amendment and Waiver	 	 	13	 
	8.5
	 	Notices	 	 	14	 
	8.6
	 	Transferability of Shares	 	 	14	 
	8.7
	 	Delays or Omissions	 	 	15	 
	8.8
	 	Severability	 	 	15	 
	8.9
	 	Interpretation	 	 	15	 
	8.10
	 	Information Confidential	 	 	15	 
	8.11
	 	Further Assurances	 	 	15	 
	8.12
	 	Headings	 	 	15	 
	8.13
	 	Counterparts	 	 	15	 






Schedules




Disclosure Schedule





(ii)











 





ARCHEMIX CORP.




COMMON STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT




     THIS COMMON STOCK PURCHASE AND REGISTRATION RIGHTS AGREEMENT dated as of [_______] (the
“Agreement”) is made by and between Archemix Corp., a Delaware corporation (the “Company”), and
Merck KGaA, a company organized under the laws of Germany (the “Purchaser”).



     WHEREAS, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to
purchase, shares of the Company’s common stock, par value $.001 per share (“Common Stock”), as
provided in Section 5.1 of that certain Collaborative Research and License Agreement between the
Company and the Purchaser dated June 6, 2007.



     NOW, THEREFORE, in consideration of the premises and mutual agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:



SECTION 1

Definitions




     1.1 For purposes of this Agreement, the following terms shall have the meanings set forth
below:



          (a) “Act” shall mean the Securities Act of 1933, as amended, or any similar federal statute
and the rules, regulations and policies of the Commission thereunder, all as the same shall be in
effect at the time.




          (b) “1934 Act” means the Securities Exchange Act of 1934, as amended, or any similar federal
statute and the rules, regulations and policies of the Commission thereunder, all as the same
shall be in effect at the time.




          (c) “Affiliate” shall mean an individual, trust, business trust, joint venture, partnership,
corporation, limited liability company, association or any other entity which (directly or
indirectly) is controlled by, controls or is under common control with the Purchaser. For the
purposes of this definition, the term “control” (including, with correlative meanings, the term
“controlled by” and “under common control with”) as used with respect to the Purchaser, means the
possession of the power to direct or cause the direction of the management and policies of an
entity, through the ownership of the outstanding voting securities or by contract or otherwise.




          (d) “By-laws” shall mean the Amended and Restated By-Laws of the Company, as amended from
time to time.




          (e) “Certificate of Incorporation” shall mean the Company’s Restated Certificate of
Incorporation on file with the Secretary of State of the State of Delaware, as amended from time
to time.




 









 








          (f) “Closing” and “Closing Date” shall have the meanings specified in Section 2.2 hereof.




          (g) “Commission” shall mean the Securities and Exchange Commission or any other federal
agency at the time administering the Act.




          (h) “Common Stock” shall have the meaning specified in the recitals.




          (i) “Competitor of the Company” shall mean a person or entity that poses a competitive threat
to the Company’s business or is engaged in the same or a substantially similar business as the
Company, as determined by the Company’s board of directors.




          (j) “Holder” means the Purchaser (so long as the Purchaser holds Registerable Securities) and
any person owning or having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 5.5 hereof.




          (k) “Purchase Price” shall have the meaning specified in Section 2.1 hereof.




          (l) “Prospectus” shall mean the prospectus contained in the Registration Statement.




          (m) “Qualified Public Offering” means the Company’s firm commitment underwritten initial
public offering filed under the Act covering the offer and sale of the Company’s Common Stock,
with gross offering proceeds to the Company of not less than $30,000,000 exclusive of any amount
issued to the Purchaser pursuant to the this Agreement.




          (n) “Registrable Securities” means (i) any shares of Common Stock issued to the Purchaser
pursuant to this Agreement, (ii) any Common Stock 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 referenced
in (i) above, excluding in all cases, however, any Registrable Securities sold by a person in a
transaction in which the rights under this Agreement are not assigned; provided,
however, that shares of Common Stock which are Registrable Securities shall cease to be
Registrable Securities upon any sale pursuant to a registration statement, Section 4(1) of the Act
or Rule 144 under the Act, any sale in any manner to a person or entity which, by virtue of
Section 5.5 of this Agreement, is not entitled to the rights provided by this Agreement or upon
the eligibility for sale of such shares under Rule 144(k) under the Act.




          (o) “Registration Statement” shall mean the Registration Statement on Form S-1 (File No.
333-144837) filed with the Commission relating to the Company’s initial public offering of
its Common Stock.




          (p) “Shares” shall have the meaning specified in Section 2.1 hereof.




     1.2 Certain other words and phrases are defined or described elsewhere in this Agreement and
the Exhibits and Schedules hereto.



     1.3 Wherever used in this Agreement:



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          (a) the words “include” or “including” shall be construed as also incorporating “but not
limited to” and “without limitation”;




          (b) the word “day” means a calendar day unless specified otherwise; and




          (c) the word “law” (or “laws”) means any statute, ordinance, regulation or code.




     1.4 Unless specified to the contrary, references to Articles, Sections, Schedules and/or
Exhibits mean the particular Article, Section, Schedule or Exhibit in or to this Agreement.



     1.5 References to this Agreement shall include this Agreement as varied or modified from time
to time by the parties.



     1.6 Unless the context requires otherwise, words in the singular number include the plural and
vice versa.



     1.7 All Schedules and Exhibits hereto are hereby incorporated herein and made a part hereof.



SECTION 2

Authorization, Purchase and Sale of the Shares




     2.1 Purchase and Sale of the Shares. At the Closing (as defined in Section 2.2
hereof), and subject to the terms and conditions hereof and in reliance upon the representations,
warranties and agreements contained herein, the Company shall issue and sell to the Purchaser and
the Purchaser shall purchase from the Company [________] shares of Common Stock (the “Shares”)
at a purchase price of $[_____] per share for a total purchase price of $[___________] (the
“Purchase Price”).



     2.2 Closing. The purchase and sale of the Shares being purchased by the Purchaser
shall take place at the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One
Financial Center, Boston, MA 02111, at 10:00 a.m., local time, on [_______________], or at such
other location, date and time as may be agreed upon among the Purchaser and the Company (such
closing being called the “Closing” and such date and time being called the “Closing Date”). At the
Closing, the Company shall issue and deliver to the Purchaser a certificate in definitive form,
registered in the name of the Purchaser, representing the Shares being purchased by the Purchaser
at the Closing. As payment in full for the Shares being purchased by it under this Agreement, and
against delivery of the certificate therefor as aforesaid, on the Closing Date, the Purchaser (a)
shall deliver to the Company a check payable to the order of the Company in the amount of the
Purchase Price, (b) shall transfer such amount to the account of the Company by wire transfer, or
(c) shall deliver a combination of (a) and (b) above.



SECTION 3

Representations and Warranties and Certain Covenants of the Company




     Except as set forth in any disclosure schedules delivered herewith (which shall be numbered to
correspond with the sections of this Section 3), the Company hereby represents and



3









 







warrants to and covenants to the Purchaser as follows:



     3.1 Organization, Qualifications and Corporate Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the State of Delaware
and the Company is duly licensed or qualified to transact business as a foreign corporation and is
in good standing in each jurisdiction in which the nature of the business transacted by it or the
character of the properties owned or leased by it requires such licensing or qualification, except
where failure to qualify would not have a material adverse effect on the business or financial
condition of the Company. The Company has the corporate power and authority to own and hold its
properties and to carry on its business as now conducted or as planned to be conducted in the
foreseeable future, to execute, deliver and perform this Agreement and any other agreements,
documents or instruments contemplated hereby to which it is a party, to issue, sell and deliver the
Shares.



     3.2 Authorization of Agreements, Etc. 



          (a) The execution and delivery by the Company of this Agreement, the performance by the
Company of its obligations hereunder and thereunder, and the issuance, sale and delivery of the
Shares have been duly authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government specifically naming the
Company, the Certificate of Incorporation, or the By-laws or any material provision of any
indenture, agreement or other instrument which is filed as an exhibit to the Registration
Statement, or conflict with, result in a breach of or constitute (with due notice or lapse of time
or both) a default under any such indenture, agreement or other instrument, which violation,
conflict or default could have a material adverse effect on the Company, or result in the creation
or imposition of any material lien, charge, restriction, claim or encumbrance upon any of the
properties or assets of the Company.




          (b) The Shares have been duly authorized and the Shares, when issued in accordance with this
Agreement, will be validly issued, fully paid and nonassessable and free of all liens, charges,
restrictions, claims and encumbrances imposed by or through the Company. None of the issuance,
sale or delivery of the Shares is subject to any preemptive right of stockholders of the Company
or to any right of first refusal or other right in favor of any person which has not been waived.




     3.3 Validity. This Agreement has been duly executed and delivered by the Company.
This Agreement constitutes the legal, valid and binding obligations of the Company, enforceable in
accordance with its respective terms subject to bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting the rights of creditors and to general principles of equity.



     3.4 Consents. All consents, approvals, orders, or authorizations of, or
registrations, qualifications, designations, declarations, or filings with any federal or state
governmental authority, any party to a contract to which the Company is bound or any other third
party on the part of the Company required in connection with the consummation of the transactions
contemplated by this Agreement shall have been obtained prior to, and be effective as of, the
Closing (other than such filings under the “blue sky” law of any state governmental authority and



4









 







any federal securities law filings that may be made after the Closing, which such filings
shall be timely made).



     3.5 Subsidiaries. The Company has no subsidiaries other than as listed in an Exhibit
to the Registration Statement.



     3.6 Capitalization. The authorized and outstanding shares of capital stock and
options, warrants and other rights to purchase capital stock of the Company is as set forth in the
Prospectus.



     3.7 Litigation. Except as set forth in the Prospectus and required to be disclosed
therein, there is no (i) action, suit, claim, proceeding or investigation pending or, to the best
of the Company’s knowledge, threatened against the Company, at law or in equity, or before or by
any federal, state, municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, (ii) arbitration proceeding relating to the Company
pending under collective bargaining agreements or otherwise or (iii) governmental inquiry pending
or, to the best of the Company’s knowledge, threatened against the Company (including without
limitation any inquiry as to the qualification of the Company to hold or receive any license or
permit), and to the best of the Company’s knowledge there is no basis for any of the foregoing.



     3.8 Financial Statements. The financial statements of the Company contained in the
Prospectus (i) are true and correct in all material respects, (ii) are in accordance with the books
and records of the Company, (iii) present fairly in all material respects the financial position of
the Company on as of the dates thereof and (iv) were prepared in accordance with United States
generally-accepted accounting principles (except, with respect to any interim financial statements,
for all of the required footnotes and year end adjustments).



     3.9 Taxes. The Company has accurately prepared in all material respects and timely
filed all federal, state, county and local tax returns required to be filed by it, and the Company
has paid all taxes required to be paid by it pursuant to such returns as well as all other taxes,
assessments and governmental charges which have become due or payable, including, without
limitation all taxes which the Company is obligated to withhold from amounts owing to employees,
creditors and third parties. All such taxes with respect to which the Company has become obligated
pursuant to elections made by the Company in accordance with generally accepted practice have been
paid and adequate reserves have been established for all taxes accrued but not payable.



     3.10 Intellectual Property. The Company owns or possesses adequate licenses or other
rights to use all patents, patent applications, trademarks, trademark applications, service marks,
service mark applications, trade names, copyrights, manufacturing processes, formulae, trade
secrets, customer lists and know how (collectively, “Intellectual Property”) necessary to the
conduct of its business as conducted consistent with the description of the Company’s business as
set forth in the Prospectus. The Company has not been informed that the licenses granted by or to
the Company and listed in Section 3.10 of Schedule II are not valid and enforceable. To
the knowledge of the Company, all right, title and interest in any Intellectual Property which has
been developed by key employees or founders of the Company in their capacity as either



5









 







employees or consultants to the Company which is necessary for the conduct of the Company’s
business as conducted has been unconditionally assigned to the Company.



     3.11 Brokers. The Company has no contract, arrangement or understanding with any
broker, finder or similar agent with respect to the transactions contemplated by this Agreement.



     3.12 Insurance. The Company will use its commercially reasonable efforts to maintain
insurance with financially sound and reputable insurance companies or associations, in such amounts
and covering such risks as are adequate and customary for the type and scope of its properties and
business as currently conducted and as planned to be conducted in the foreseeable future.



SECTION 4

Representations and Warranties of Purchaser




     The Purchaser represents and warrants to the Company as follows:



     4.1 Experience. The Purchaser: (a) is an accredited investor within the definition of
Regulation D promulgated under the Act; (b) is experienced in evaluating and in investing in
developing biotechnology companies such as the Company and can afford a loss of its entire
investment; and/or (c) has a pre-existing personal or business relationship with the Company and/or
certain of its officers, directors or controlling persons of a nature and duration that enable it
to be aware of the character, business acumen and financial circumstance of such persons.



     4.2 Investment. The Purchaser is acquiring the Shares for investment for its own
account and not with the view to, or for resale in connection with, any distribution thereof. It
understands that the Shares have not been registered under the Act by reason of specified
exemptions form the registration provisions of the Act.



     4.3 Rule 144. The Purchaser acknowledges that the Shares must be held indefinitely
unless they are subsequently registered under the Act or an exemption from such registration is
available. It has been advised or is aware of the provisions of Rule 144 promulgated under the Act,
which permit limited release of shares purchased in a private placement subject to the satisfaction
of certain conditions, and is aware that such Rule may not become available for resale of the
Shares.



     4.4 Access to Data. The Purchaser has had an opportunity to discuss the Company’s
business, management and financial affairs with the Company’s management and has had the
opportunity to review the Company’s facilities.



     4.5 Brokers. The Purchaser has no contract, arrangement or understanding with any
broker, finder or similar agent with respect to the transactions contemplated by this Agreement.



     4.6 Authorization. The Purchaser has full power and authority to enter into and to
perform this Agreement in accordance with its terms. All action (corporate or otherwise) on the
part of the Purchaser necessary for the authorization, execution, delivery and performance by the
Purchaser of this Agreement and the consummation of the transactions contemplated herein has been
taken. This Agreement is valid and binding obligation of the Purchaser, enforceable in



6









 







accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors and to general principles of equity.



SECTION 5

Registration Rights




     5.1 “Piggyback” Registration.



          (a) Registration Statement. Following the consummation of a Qualified Public
Offering, if (but without any obligation to do so) the Company shall determine to register
(including for this purpose a registration effected by the Company for stockholders other than the
Holders) any of its stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration or Form S-4 or S-8 or relating
solely to the sale of securities to participants in a stock plan or a registration relating solely
to a Rule 145 transaction or a registration on any form which does not include substantially the
same information as would be required to be included in a registration statement covering the sale
of the Registrable Securities), the Company shall, at such time, promptly give each Holder written
notice of such registration. Upon the written request of each Holder given within fifteen (15)
days after receipt of such notice by the Holder in accordance with Section 8.5, the Company shall,
subject to the provisions of this Section.5.1, use its reasonable best efforts to include in such
registration all of the Registrable Securities that each such Holder has requested to be
registered.




          (b) Company Deferral. If the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment of the Board, it
would be seriously detrimental to the Company and its stockholders for such Holder’s shares to be
included in the registration statement to be filed and it is therefore essential to defer the
inclusion of all or some of the Holders’ Registrable Securities in such registration statement,
the Company shall have the right to exclude such number of shares as the Company deems, in its
good faith judgment, are necessary.




          (c) Underwriting Requirements. In connection with any offering involving an
underwriting of shares of the Company’s capital stock, the Company shall not be required under
this Section 5.1 to include any of the Holders’ Registrable Securities in such underwriting unless
such Holders accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by the Company (or by other persons entitled to select the underwriters and
then only in such quantity as the underwriters determine in their sole reasonable discretion will
not jeopardize the successes of their offering by the Company or such other persons). If the
total amount of securities, including Registrable Securities, requested by stockholders to be
included in an offering exceeds the amount that the underwriters determine, in their sole
reasonable discretion, is compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities, including Registrable
Securities, which the underwriters determine in their sole reasonable discretion will not
jeopardize the success of the offering. If the number of Registrable Securities to be included in
the underwriting in accordance with the foregoing is less than the total number of shares which
the Holders of Registrable Securities have requested to be included, then the other holders of all
other shares of capital stock with registration rights who



7









 






have requested to be included in the registration statement shall participate in the
underwriting prior to the Holders of Registrable Securities who have requested registration.




          (d) Withdrawal. Notwithstanding the foregoing provisions, the Company may withdraw
any registration statement referred to in this Section 5.1 for any reason without thereby
incurring any liability to the holders of Registrable Securities.




     5.2 Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 5 with respect to the Registrable Securities of
any selling Holder that such Holder shall furnish to the Company such information regarding itself,
the Registrable Securities held by it, and the intended method of disposition of such securities as
shall be required to effect the registration of such Holder’s Registrable Securities.



     5.3 Sale or Transfer of Shares; Legend.



          (a) The Registrable Securities shall not be sold or transferred unless either (i) such shares
first shall have been registered under the Act, or (ii) the transfer complies with Rule 144, Rule
144A or an exemption from registration under the Act, provided that, if requested by the Company,
the Company shall have been first furnished with an opinion of legal counsel, to the effect that
such sale or transfer is exempt from the registration requirements of the Act.




          (b) Each certificate representing the Registrable Securities shall bear a legend
substantially in the following form:





“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW AND THEY MAY NOT BE OFFERED,
SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED BY ANY PERSON, INCLUDING A
PLEDGEE, UNLESS (1) EITHER (a) SUCH SHARES FIRST SHALL HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (b) THE TRANSFER COMPLIES WITH RULE 144,
RULE 144A OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND, IF REQUESTED BY THE COMPANY, THE COMPANY SHALL HAVE RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACTS IS THEN AVAILABLE, AND (2) THERE SHALL HAVE BEEN COMPLIANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS.




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A COMMON STOCK PURCHASE
AND REGISTRATION RIGHTS AGREEMENT, AS AMENDED FROM TIME TO TIME (COPIES OF WHICH MAY
BE OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE
PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY
ALL THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT. THE SALE, TRANSFER,
HYPOTHECATION OR OTHER



8









 







DISPOSITION OF SUCH SHARES IS SUBJECT TO THE TERMS OF SUCH AGREEMENT AND SUCH SHARES
ARE TRANSFERABLE ONLY UPON PROOF OF COMPLIANCE THEREWITH.”


The foregoing legend shall be removed from the certificates representing any Registrable
Securities, at the request of the holder thereof, at such time as they become eligible for resale
pursuant to Rule 144(k) under the Act.




     5.4 Indemnification. In the event any Registrable Securities are included in a
registration statement under this Section 5:



          (a) To the extent permitted by law, the Company will indemnify, defend and hold harmless each
Holder, its officers, directors, employees, agents and representatives, any underwriter (as
defined in the Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934 Act (each, a “Company Indemnified Person”),
against any losses, claims, damages, or liabilities (joint or several) to which they may become
subject under the Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) (the “Company Indemnified Amount”) arise
out of or are based upon any of the following (collectively, a “Violation”): (i) any untrue
statement of a material fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii)
the omission to state therein a material fact required to be stated therein, or necessary to make
the statements therein not misleading, or (iii) any violation by the Company of the Act, the 1934
Act, any state securities law or any rule or regulation promulgated under the Act, the 1934 Act or
any state securities or Blue Sky laws or any rule or regulation thereunder in connection with such
registration; and the Company will pay to each such Company Indemnified Person, as incurred, any
legal or other expenses reasonably incurred by them in connection with investigating or defending
any Company Indemnified Amount; provided, however, that the indemnity agreement
contained in this subsection 5.4(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without the consent of
the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such Company Indemnified Amount as to any Company Indemnified Person to the
extent such liability arises out of or is based upon a Violation (i) which occurs in reliance upon
and in conformity with written information relating to such Company Indemnified Person and
furnished expressly for use in connection with such registration by such Company Indemnified
Person or (ii) contained in a preliminary prospectus and corrected in a final or amended
prospectus if such seller, underwriter or controlling person received notice of such final or
amended prospectus prior to the effective date of the registration statement but failed to deliver
a copy of the final or amended prospectus at or prior to the confirmation of the sale of the
Registrable Securities to the person asserting any such loss, claim, damage or liability resulting
from a Violation contained in such preliminary prospectus, in any case where such delivery is
required by the Act.




          (b) To the extent permitted by law, each selling Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of



9









 






the Act, any underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons may become
subject, under the Act, the 1934 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) (the “Holder Indemnified Amount”)
arise out of or are based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written information relating to
such Holder and furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 5.4(b), in connection with
investigating or defending any Holder Indemnified Amount; provided, however, that
the indemnity agreement contained in this subsection 5.4(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably withheld; and
provided, that, in no event shall any indemnity under this subsection 5.4(b)
exceed the net proceeds from the offering received by such Holder.




          (c) Promptly after receipt by an indemnified party under this Section 5.4 of notice of the
commencement of any action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this Section 5.4,
deliver to the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 5.4, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 5.4.




          (d) If the indemnification provided for in this Section 5.4 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim,
damage, or expense referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the Violation that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information



10









 






supplied by the indemnifying party or by the indemnified party and the parties’ relative
intent, knowledge, access to information, and opportunity to correct or prevent such statement or
omission; and provided, that, in no event shall any contribution under this subsection
5.4d) exceed the net proceeds from the offering received by such Holder.




          (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.




          (f) The obligations of the Company and Holders under this Section 5.4 shall survive the
completion of any offering of Registrable Securities in a registration statement under this
Section 5, and otherwise.




     5.5 Assignment of Registration Rights. Subject to Section 8.6, the rights to cause
the Company to register Registrable Securities pursuant to this Section 5 may be assigned (but only
with all related obligations) by a Holder to a Permitted Assignee (as defined below),
provided that: (a) the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (b) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of this Agreement; (c)
such assignment shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under the Act; and (d)
such transferee or assignee is not a Competitor of the Company. For purposes of this Section 5.5 a
“Permitted Assignee” shall mean an entity that acquires all or substantially all of the ownership
interests of a Holder.



     5.6 “Market Stand-Off” Agreement. The Purchaser hereby agrees that, during the one
hundred eighty (180) day period following the effective date of the registration statement for the
Qualified Public Offering or such other period as requested of all Company executive officers
required to file Forms 3 and 4 and directors of the Company by the underwriters in the Qualified
Public Offering in order to comply with Rule 2711 of the National Association of Securities Dealers
or otherwise, the Purchaser shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any
short sale), grant any option to purchase or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any securities of the Company held by it at any time during such
period except Common Stock included in such registration; provided, however, that
all executive officers and directors of the Company enter into similar agreements. In addition to
the obligations under this Section, the Purchaser agrees to execute a separate agreement on form
satisfactory to such underwriter containing such covenant and obligation.



     In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions
with respect to the Registrable Securities of the Purchaser (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.



     Notwithstanding the foregoing, the obligations described in this Section 5.6 shall not apply
to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or



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similar forms which may be promulgated in the future, or a registration relating solely to SEC
Rule 145, or a transaction on Form S-4 or similar forms which may be promulgated in the future.



     5.7 Termination of Registration Rights.



          The right of any Holder to request registration or inclusion in any registration pursuant to
Section 5 shall terminate once the securities held by such Holder cease to be Registrable
Securities, and this Agreement, other than Sections 5.3, 5.6 and Sections 8.1-8.13, shall terminate
once all of the securities covered hereby cease to be Registrable Securities.




SECTION 6

Purchaser’s Conditions to Closing




     The Purchaser’s obligation to purchase Shares at the Closing is subject to the fulfillment to
its satisfaction on or prior to the Closing Date of each of the following conditions:



     6.1 Representations and Warranties. The representations and warranties contained in
Section 3 shall be true, complete and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such date.



     6.2 Performance. The Company shall have performed and complied with all covenants,
agreements and conditions contained herein required to be performed or complied with by it prior to
or at the Closing Date.



     6.3 Legal Investment. At the time of the Closing, the purchase of the Shares shall be
legally permitted by all laws and regulations to which the Purchaser and the Company are subject.



     6.4 Proceedings and Documents. All corporate and other proceedings in connection with
the transactions contemplated hereby and all documents and instruments incident to such
transactions shall be reasonably satisfactory in form and substance to the Purchaser and its
counsel. Prior to the Closing, the Company shall have obtained all consents or waivers, if any,
necessary to execute and deliver this Agreement, issue the Shares and to carry out the transactions
contemplated hereby and thereby, and all such consents and waivers shall be in full force and
effect.



     6.5 Qualifications. All other authorizations, approvals or permits if any, of any
governmental authority or regulatory body of the United States or any state that are required prior
to and in connection with the lawful issuance and sale of the Shares pursuant to this Agreement
shall be effective on and as of the Closing Date.



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SECTION 7

Company’s Conditions to Closing




     The Company’s obligation to sell the Shares at the Closing is subject to the fulfillment on or
prior to the Closing Date of each of the following conditions:



     7.1 Representations and Warranties. The representations and warranties made by the
Purchaser pursuant to Section 4 hereof shall be true and correct when made and shall be true and
correct on the Closing Date.



     7.2 Performance. The Purchaser shall have performed and complied with all covenants,
agreements and conditions contained herein required to be performed or complied with by it prior to
or at the Closing Date.



     7.3 Legal Investment. At the time of the Closing, the purchase of the Shares shall be
legally permitted by all laws and regulations to which the Purchaser and the Company are subject.



     7.4 Payment of Purchase Price. The Purchaser shall have delivered to the Company a
check or a transfer of funds to the account of the Company in the full amount of the Purchase
Price.



SECTION 8

Miscellaneous




     8.1 Governing Law. This Agreement shall be governed in all respects by the laws of the
State of Delaware without giving effect to principles of conflicts of law thereunder.



     8.2 Survival. All covenants, agreements, representations and warranties made herein,
or in any certificate or instrument delivered to the Purchaser pursuant to or in connection with
this Agreement shall not survive the execution and delivery of this Agreement.



     8.3 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. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. Subject to the terms of this Agreement,
no party hereby may assign its rights or obligations hereunder (whether by operation of law or
otherwise, including by merger, asset sale, sale of stock or otherwise) without the prior written
consent of the other parties hereto.



     8.4 Entire Agreement; Amendment and Waiver. This Agreement (including the Schedules
and Exhibits hereto) 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. Neither this Agreement nor any term hereof may be amended, modified, waived or terminated,
except by a written instrument signed by the Company and the Purchaser.



13









 





     8.5 Notices. Unless otherwise provided, all notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the receiving party’s address
set forth below or to such other address as a party may designate by notice hereunder, and shall be
either (i) delivered by hand, (ii) made by telecopy or facsimile transmission, (iii) sent by
overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage
prepaid.



	 	 	 
	If to the Company:

	 	Archemix Corp.

300 Third Street

Cambridge, MA

Attn: Chief Executive Officer

Attn: General Counsel

Facsimile: (617) 621-9300
	 
	 	 
	With a copy to:

	 	Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

One Financial Center

Boston, MA 02111

Attn: Jeffrey M. Wiesen, Esquire

Facsimile: (617) 542-2241

	 
	 	 
	If to the Purchaser:

	 	Merck KGaA

Legal Department

Frankfurter Str. 250

64293 Darmstadt

Germany

Facsimile: +49 6151 72 2373





or, in any such case, at such other address or addresses as shall have been furnished in
writing by such party to the others.




     All notices, requests, consents and other communications hereunder shall be deemed to have
been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the
address of such party set forth above, (ii) if made by telecopy or facsimile transmission, at the
time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if
sent by overnight courier, on the next business day following the day such notice is delivered to
the courier service, or (iv) if sent by registered or certified mail, on the fifth business day
following the day such mailing is made.



     8.6 Transferability of Shares. The Purchaser or any transferee or assignee of
Registrable Securities hereby agrees not to sell, transfer, assign, exchange, pledge, hypothecate
or otherwise dispose of the Registerable Securities, or any right or interest therein, whether
voluntary, by operation of law or otherwise, (including by merger, asset sale, sale of stock or
otherwise), except to a Permitted Assignee in accordance with Section 5.5 or with the express
written consent of the Company.



14









 





     8.7 Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any holder of any shares upon any breach or default of the Company under this Agreement
shall impair any such right, power or remedy of such holder nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or in any similar breach or
default occurring thereafter; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder or any breach or default
under this Agreement, or any waiver on the part of any holder of any provisions or conditions of
this Agreement must be made in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to
any holder, shall be cumulative and not alternative.



     8.8 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.



     8.9 Interpretation. The parties hereby acknowledge and agree that: (i) each party
and its counsel reviewed and negotiated the terms and provisions of this Agreement and have
contributed to its revision; (ii) the rule of construction to the effect that any ambiguities are
resolved against the drafting party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly as to all parties
hereto and not in a favor of or against any party, regardless of which party was generally
responsible for the preparation of this Agreement.



     8.10 Information Confidential. The Purchaser agrees that it shall keep confidential
and shall not use any confidential, proprietary or secret information received by it with respect
to the Company which has been marked or otherwise designated as confidential, including, without
limitation, information regarding the nature of the Company’s business, financial, business
development, product and marketing strategies, financial statements and reports, or reproduce,
disclose or disseminate such information to any other person (other than to its employees, agents,
attorneys having a need to know the contents of such information or an Affiliate that is not a
Competitor of the Company), except in connection with this Agreement, unless (a) the Company has
made such information available to the public generally; (b) such Purchaser is required to disclose
such information by a governmental body; or (c) the Purchaser received such information in a lawful
disclosure from a third party after the date of this Agreement.



     8.11 Further Assurances. From and after the date of this Agreement, the Company and
the Purchaser shall execute and deliver such instruments, documents or other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.



     8.12 Headings. The headings and subheadings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.



     8.13 Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the



15









 







same instrument. One or more counterparts of this Agreement may be delivered via telecopier
with the intention that they shall each have the same effect as an original counterpart hereof.



[Remainder of Page Intentionally Left Blank]




16









 








     IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	COMPANY:


ARCHEMIX CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	PURCHASER:


Merck KGaA

ppa.
	 	i.V.	 	 
	 
	 

	 	 	 	 

	 	 

	 	 
	 

	 	 	 	Hans-Friedrich Geiss

Senior Vice President

Accounting & Controlling
	 	Jens Eckhardt

Legal Counsel	 	 







17