Exhibit 99.3
REGISTRATION RIGHTS
AGREEMENT
T HIS R EGISTRATION R IGHTS A GREEMENT (this “Agreement” ) is
entered into as of January 10, 2005 (the “Effective
Date” ) by and between ACADIA Pharmaceuticals Inc., a
Delaware corporation ( “ACADIA” ), and
Sepracor Inc., a Delaware corporation (
“Sepracor” ).
W HEREAS , concurrently herewith, the parties have
entered into a Common Stock Purchase Agreement (the
“Purchase Agreement” ) and a License,
Option and Collaboration Agreement (the “Collaboration
Agreement” );
W HEREAS , in connection with and as a condition of
ACADIA and Sepracor entering into the Purchase Agreement and the
Collaboration Agreement, ACADIA and Sepracor have agreed to enter
into this Agreement pursuant to which ACADIA has agreed to provide
Sepracor with certain registration rights with respect to the
Shares (as defined herein) purchased by Sepracor pursuant to the
Purchase Agreement; and
W HEREAS , such registration rights are no more favorable
in the aggregate than those provided in the Stockholders Agreement
(as defined herein).
N OW ,
T HEREFORE
, in consideration of the foregoing
premises and the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used herein but
not otherwise defined shall have the meanings ascribed to them in
the Purchase Agreement.
1.1 “ACADIA
Board” means the
board of directors of ACADIA.
1.2
“Affiliate” means, with respect to any Person, any Person
who controls, is controlled by, or is under common control with,
such Person.
1.3 “Common
Stock” means the
Common Stock, par value $.0001 per share, of ACADIA.
1.4 “Exchange
Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
1.5
“Holder” means (i) Sepracor and (ii) if Sepracor (or any
permitted assignee) assigns its rights hereunder with respect to
any of the Registrable Shares in accordance with Section 3.2
hereof, the subsequent holder of such Registrable
Shares.
1.6 “Initiating
Holders” means any
Holder or Holders who in the aggregate hold a majority of the
Registrable Shares then outstanding.
1.7 “Institutional
Stockholder” and
“Institutional Stockholders” have the meanings
set forth in Section 1.15 of this Agreement.
1.8
“Person” means any natural person, corporation, limited
liability company, general or limited partnership, limited
liability partnership, joint venture, joint stock company, trust,
unincorporated organization, association, sole proprietorship,
governmental body, or agency or political subdivision of any
government.
1.9 “Registrable
Shares” means the
Shares; provided, however , that Shares shall cease to be
Registrable Shares (i) upon any sale pursuant to a Registration
Statement or Rule 144 under the Securities Act or (ii) upon any
transfer to a Person which, by virtue of Section 3.2 of this
Agreement, is not entitled to the rights provided by this
Agreement.
1.10 “Registration
Expenses” means the
expenses described in Section 2.4 of this Agreement.
1.11 “Registration
Statement” means a
registration statement filed by ACADIA with the SEC (as defined
herein) for a public offering and sale of Common Stock (other than
a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any
registration statement covering only securities proposed to be
issued in exchange for securities or assets of another
corporation).
1.12 “SEC”
means the United States Securities
and Exchange Commission.
1.13 “Securities
Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
1.14
“Shares” has
the meaning set forth in Section 1.24 of the Purchase
Agreement.
1.15 “Stockholders
Agreement” means
the Amended and Restated Stockholders Agreement entered into as of
March 27, 2003, by and among ACADIA, those individuals and entities
identified on the signature page thereof as the
“Existing Institutional Stockholders” ,
Mark R. Brann, and the entities identified on the signature page
thereof as the “New Institutional
Stockholders” . The Existing Institutional
Stockholders and New Institutional Stockholders (and their
successors and assigns) are sometimes referred to herein
individually as an “Institutional
Stockholder” or collectively as
“Institutional Stockholders” .
ARTICLE 2
REGISTRATION
RIGHTS
2.1 Required
Registrations.
(a) At any time (i) commencing one year after the
First Closing Date with respect to the Shares purchased on the
First Closing Date and (ii) commencing one year after the Second
Closing Date with respect to the Shares purchased on the Second
Closing Date, the Initiating Holders may request, in writing, that
ACADIA effect the registration of Registrable Shares having an
aggregate offering price of at least $2,500,000 (based on the then
current
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market price). If the Initiating Holders intend
to distribute the Registrable Shares by means of an underwriting,
they shall so advise ACADIA in their request. In the event such
registration is underwritten, the right of other Holders to
participate shall be conditioned on such Holders’
participation in such underwriting. Upon receipt of any such
request, ACADIA shall promptly give written notice of such proposed
registration to all Holders. Such Holders shall have the right, by
giving written notice to ACADIA within ten days after ACADIA
provides its notice, to elect to have included in such registration
such of their Registrable Shares as such Holders may request in
such notice of election; provided that if the underwriter
(if any) managing the offering determines that, because of
marketing factors, all of the Registrable Shares requested to be
registered by all Holders may not be included in the offering, then
all Holders who have requested registration shall participate in
the registration pro rata based upon the number of Registrable
Shares which they have requested to be so registered. If the
underwriter has not limited the number of Registrable Shares to be
underwritten, ACADIA may include securities for its own account (or
for the account of other stockholders) in such registration if the
underwriter so agrees and if the number of Registrable Shares that
would otherwise have been included in such registration and
underwriting will not thereby be limited. Thereupon, ACADIA shall,
as expeditiously as possible, use its best efforts to effect the
registration of all such Registrable Shares.
(b) ACADIA shall not be required to effect more than
three registrations pursuant to paragraph (a) above. In addition,
ACADIA shall not be required to effect any registration (other than
on Form S-3 or any successor form) within six months after the
effective date of any other Registration Statement of
ACADIA.
(c) If at the time of any request to register
Registrable Shares pursuant to this Section 2.1, ACADIA is engaged
or has fixed plans to engage within 30 days of the time of the
request in a registered public offering as to which Holders may
include Registrable Shares pursuant to Section 2.2 or is engaged in
any other activity which, in the good faith determination of the
ACADIA Board, would be adversely affected by the requested
registration to the material detriment of ACADIA, then ACADIA may
at its option direct that such request be delayed for a period not
in excess of six months from the effective date of such offering or
the date of commencement of such other material activity, as the
case may be, such right to delay a request may not be exercised by
ACADIA more than once in any two-year period.
2.2 Incidental
Registration.
(a) Whenever ACADIA proposes to file a Registration
Statement pursuant to Section 9.1 of the Stockholders Agreement,
ACADIA will, prior to such filing, give written notice to the
Holders of its intention to do so and, upon the written request of
any Holder given within 20 days after ACADIA provides such notice
(which request shall state the intended method of disposition of
such Holder’s Registrable Shares), ACADIA shall use its best
efforts to cause all Registrable Shares which ACADIA has been
requested by such Holder to register to be registered under the
Securities Act to the extent necessary to permit their sale or
other disposition in accordance with the intended methods of
distribution specified in the request of such Holder;
provided that ACADIA shall have the right to postpone or
withdraw any registration effected pursuant to this Section 2.2(a)
without obligation to the Holders.
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(b) Whenever ACADIA proposes to file a Registration
Statement (other than pursuant to Section 2.1 or 2.2(a)), ACADIA
will, prior to such filing, give written notice to the Holders of
its intention to do so and, upon the written request of any Holder
given within 20 days after ACADIA provides such notice (which
request shall state the intended method of disposition of such
Holder’s Registrable Shares), ACADIA shall use its best
efforts to cause all Registrable Shares which ACADIA has been
requested by such Holder to register to be registered under the
Securities Act to the extent necessary to permit the sale or other
disposition in accordance with the intended methods of distribution
specified in the request of such Holder; provided, however,
that, during the one-year period following the First Closing Date,
ACADIA shall have the right to file one Registration Statement
which shall not be subject to this Section 2.2(b); provided
further that ACADIA shall have the right to postpone or
withdraw any registration effected pursuant to this Section 2.2(b)
without obligation to the Holders.
(c) In connection with any registration under this
Section 2.2 involving an underwriting, ACADIA shall not be required
to include any Registrable Shares in such registration unless the
Holders thereof accept the terms of the underwriting as agreed upon
between ACADIA and the underwriters selected by it (
provided that such terms must be consistent with this
Agreement). If in the opinion of the managing underwriter it is
appropriate because of marketing factors to limit the number of
Registrable Shares to be included in the offering, then ACADIA
shall be required to include in the registration only that number
of Registrable Shares, if any, which the managing underwriter
believes should be included therein; provided that no
Persons other than the Holders, ACADIA, Institutional Stockholders
and other Persons holding registration rights shall be permitted to
include securities in the offering. If the number of Registrable
Shares to be included in the offering in accordance with the
foregoing is less than the total number of shares which the Holders
have requested to be included, then the Holders who have requested
registration and any other Persons who have requested registration
pursuant to similar incidental registration rights shall
participate in the registration pro rata based on their total
ownership of shares of Common Stock.
2.3 Registration
Procedures. If and
whenever ACADIA is required by the provisions of this Agreement to
use its best efforts to effect the registration of any of the
Registrable Shares under the Securities Act, ACADIA
shall:
(a) promptly file with the SEC a Registration
Statement with respect to such Registrable Shares and use its best
efforts to cause that Registration Statement to become
effective;
(b) as expeditiously as possible prepare and file
with the SEC any amendments and supplements to the Registration
Statement and the prospectus included in the Registration Statement
as may be necessary to keep the Registration Statement effective,
in the case of a firm commitment underwritten public offering,
until each underwriter has completed the distribution of all
securities purchased by it and, in the case of any other offering,
until the earlier of the sale of all Registrable Shares covered
thereby or 120 days after the effective date thereof;
(c) as expeditiously as possible furnish to each
Holder including Registrable Shares in such registration such
reasonable numbers of copies of the prospectus and the
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Registration Statement, including a preliminary
prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Holder may reasonably request
in order to facilitate the public sale or other disposition of its
Registrable Shares;
(d) as expeditiously as possible use its best
efforts to register or qualify the Registrable Shares covered by
the Registration Statement under the securities or Blue Sky laws of
such states as the Holders of a majority of the Registrable Shares
included in such registration shall reasonably request, and do any
and all other acts and things that may be necessary or desirable to
enable the Holders including Registrable Shares in such
registration to consummate the public sale or other disposition in
such states of their Registrable Shares; provided, however ,
that ACADIA shall not be required in connection with this paragraph
(d) to qualify as a foreign corporation or execute a general
consent to service of process in any jurisdiction; and
(e) in the event of any Registration Statement
involving an underwriting, furnish to each prospective selling
Holder a signed counterpart of a “comfort” letter
delivered to the underwriters and signed by the independent
auditors who have certified ACADIA’s financial statements
included in the
