Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
by and between
ACUSPHERE, INC.,
and
CEPHALON, INC.
dated as of
, 2008
REGISTRATION RIGHTS AGREEMENT, dated as of
(this
"Agreement"), by and between Acusphere, Inc., a Delaware corporation (the
"Company"), and Cephalon, Inc., a Delaware corporation (the "Purchaser").
WHEREAS, pursuant to the Note Purchase Agreement, dated as of October 24, 2008
(the "Purchase Agreement"), by and between the Company and the Purchaser, upon
the terms and subject to the conditions contained therein, the Company is
issuing and selling to the Purchaser a $15,000,000 Senior Secured Convertible
Note of the Company (the "Convertible Note");
WHEREAS, to induce the Purchaser to execute and deliver the Purchase Agreement
and as a condition to the Purchaser consummating the transactions contemplated
thereby, the Company has agreed to provide the Purchaser with the rights set
forth in this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS.
AS USED HEREIN, UNLESS THE CONTEXT OTHERWISE REQUIRES,
THE FOLLOWING TERMS HAVE THE FOLLOWING RESPECTIVE MEANINGS:
1.1.
"AFFILIATE" MEANS WITH RESPECT TO ANY PERSON,
ANY OTHER PERSON DIRECTLY OR INDIRECTLY CONTROLLING OR CONTROLLED BY OR UNDER
DIRECT OR INDIRECT COMMON CONTROL WITH SUCH SPECIFIED PERSON.
1.2.
"AGREEMENT" HAS THE MEANING SET FORTH IN THE
INTRODUCTION.
1.3.
"ASSIGNEE" HAS THE MEANING SET FORTH IN
SECTION 4.2.
1.4.
"BOARD OF DIRECTORS" MEANS THE BOARD OF
DIRECTORS OF THE COMPANY.
1.5.
"COMMON STOCK" MEANS ANY SHARES OF COMMON STOCK,
PAR VALUE $0.01 PER SHARE, OF THE COMPANY, NOW OR HEREAFTER AUTHORIZED TO BE
ISSUED, AND ANY AND ALL SECURITIES OF ANY KIND WHATSOEVER OF THE COMPANY OR ANY
SUCCESSOR THEREOF WHICH MAY BE ISSUED ON OR AFTER THE DATE HEREOF IN RESPECT OF,
IN EXCHANGE FOR, OR UPON CONVERSION OF SHARES OF COMMON STOCK PURSUANT TO A
MERGER, CONSOLIDATION, STOCK SPLIT, REVERSE SPLIT, STOCK DIVIDEND,
RECAPITALIZATION OF THE COMPANY OR OTHERWISE.
1.6.
"COMPANY" HAS THE MEANING SET FORTH IN THE
INTRODUCTION.
1.7.
"CONVERTIBLE NOTE" HAS THE MEANING SET FORTH IN
THE RECITALS.
1.8.
"CONVERTIBLE SECURITIES" SHALL MEAN (I) ANY
OPTIONS OR WARRANTS TO PURCHASE OR OTHER RIGHTS TO ACQUIRE COMMON STOCK,
(II) ANY SECURITIES BY THEIR TERMS CONVERTIBLE INTO OR EXCHANGEABLE FOR COMMON
STOCK, AND (III) ANY OPTIONS OR WARRANTS TO PURCHASE OR OTHER RIGHTS TO ACQUIRE
ANY SUCH CONVERTIBLE OR EXCHANGEABLE SECURITIES.
1.9.
"DEMAND EXERCISE NOTICE" HAS THE MEANING SET
FORTH IN SECTION 2.1(A).
1.10.
"DEMAND REGISTRATION" HAS THE MEANING SET FORTH IN
SECTION 2.1(G).
1.11.
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED, OR ANY SIMILAR FEDERAL STATUTE, AND THE RULES AND REGULATIONS
OF THE SEC THEREUNDER, ALL AS THE SAME SHALL BE IN EFFECT AT THE TIME.
REFERENCE TO A PARTICULAR SECTION OF THE EXCHANGE ACT, SHALL INCLUDE A REFERENCE
TO THE COMPARABLE SECTION, IF ANY, OF ANY SUCH SIMILAR FEDERAL STATUTE.
1.12.
"HOLDER" MEANS THE PURCHASER AND ANY ASSIGNEE.
1.13.
"HOLDER DEMAND" HAS THE MEANING SET FORTH IN
SECTION 2.1(A).
1.14.
"INDEMNIFIED PARTY" MEANS ANY PERSON SEEKING
INDEMNIFICATION PURSUANT TO SECTION 2.6.
1.15.
"INDEMNIFYING PARTY"