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Exhibit
10.25
REGISTRATION RIGHTS
AGREEMENT
This Registration Rights
Agreement (this “ Agreement ”) is made and
entered into as of March 14, 2008, by and among Corcept
Therapeutics Incorporated, a Delaware corporation (the “
Company ”), and the investors signatory hereto (each a
“ Purchaser ” and collectively, the “
Purchasers ”).
This Agreement is made
pursuant to the Securities Purchase Agreement, dated as of
March 14, 2008, among the Company and the Purchasers (the
“ Purchase Agreement ”).
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the
Purchasers agree as follows:
1. Definitions .
Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given
such terms in the Purchase Agreement. As used in this Agreement,
the following terms shall have the respective meanings set forth in
this Section 1:
“ Common Stock
” means the common stock, par value $0.001 per share, of the
Company.
“ Effective Date
” means the date that the Registration Statement filed
pursuant to Section 2(a) is first declared effective by the
Commission.
“ Effectiveness
Date ” means: (a) with respect to the Initial
Registration, the 90 th day
following the Closing (or the 105 th day following the Closing in the event
the initial Registration Statement is reviewed by the Commission),
(b) with respect to any additional Registration Statements
that may be required pursuant to Section 2 hereof, the
90 th day
following the date on which the Company first knows, or reasonably
should have known, that such additional Registration Statement is
required under such Section (or the 105 th day following the Closing in the event
the initial Registration Statement is reviewed by the
Commission).
“ Effectiveness
Date ” shall also have the meaning specified in
Section 2(b).
“ Effectiveness
Period ” shall have the meaning set forth in
Section 2(a).
“ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
“ Filing Date
” means: (a) with respect to the initial Registration
Statement required to be filed to cover the resale by the Holders
of the Registrable Securities, the 30 th day following the Closing, and
(b) with respect to any additional Registration Statements
that may be required pursuant to Section 2 hereof, the
30 th day
following the date on which the Company first knows, or reasonably
should have known, that such additional Registration Statement is
required under such Section.
“ Holder ”
or “ Holders ” means the holder or holders, as
the case may be, from time to time of Registrable
Securities.
“ Indemnified
Party ” shall have the meaning set forth in
Section 5(c).
“ Indemnifying
Party ” shall have the meaning set forth in
Section 5(c).
“ Initial
Registration Statement ” shall mean the initial
Registration Statement required to be filed to cover the resale by
the Holders of the Registrable Securities pursuant to
Section 2(a).
“ Losses ”
shall have the meaning set forth in Section 5(a).
“Person”
means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“ Proceeding
” means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or
threatened.
“ Prospectus
” means the prospectus included in a Registration Statement
(including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A or
Rule 430B promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“ Reduction
Securities ” shall have the meaning set forth in
Section 2(d).
“ Registrable
Securities ” means (i) the Shares issued pursuant to
the Purchase Agreement, (ii) the Underlying Shares issuable
upon exercise of the Warrants issued pursuant to the Purchase
Agreement and (iii) any other shares of Common Stock issued as
(or issuable upon conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution
with respect to, in exchange for or in replacement of the Shares or
the Underlying Shares.
“ Registration
Statement ” means each of the following: (i) an
initial registration statement which is required to register the
resale of the Registrable Securities, and (ii) each additional
registration statement, if any, contemplated by Section 2, and
including, in each case, the Prospectus, amendments and supplements
to each such registration statement or Prospectus, including pre-
and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“ Rule 144
” means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such
Rule.
“ Rule 415
” means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such
Rule.
“ Rule 424
” means Rule 424 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such
Rule.
“ Securities Act
” means the Securities Act of 1933, as amended.
“ Shares ”
shall have the meaning set forth in the Purchase
Agreement.
“ Trading Day
” means any day on which the Common Stock is traded on the
Principal Market (as defined in the Purchase Agreement), or, if the
Principal Market is not the principal trading market for the Common
Stock, then on the principal securities exchange or securities
market on which the Common Stock is then traded.
“ Underlying
Shares ” shall have the meaning set forth in the Purchase
Agreement.
“ Warrants
” shall have the meaning set forth in the Purchase
Agreement.
2. Registration
.
(a) On or prior to each
Filing Date, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of all Registrable
Securities not already covered by an existing and effective
Registration Statement (except as provided in Section 2(b) and
Section 2(d)) for an offering to be made on a continuous basis
pursuant to Rule 415. The Registration Statement shall be on Form
S-3 (except if the Company is not then eligible to register for
resale the Registrable Securities on Form S-3, in which case
such registration shall be on another appropriate form for such
purpose) and shall contain (except if otherwise required pursuant
to written comments received from the Commission upon a review of
such Registration Statement) the “Plan of Distribution”
in substantially the form attached hereto as Annex A . The
Company shall use its best efforts to cause each Registration
Statement to be declared effective under the Securities Act as soon
as possible but, in any event, no later than the Effectiveness Date
for such Registration Statement, and shall use its best efforts to
keep the Registration Statement continuously effective under the
Securities Act until the date on which all Registrable Securities
under such Registration are available for sale under Rule 144(b)
(or any successor provision thereto) without volume limitation (the
“ Effectiveness Period ”), subject
Section 6(d) hereof. It is agreed and understood that the
Company shall, from time to time, be obligated to file one or more
additional Registration Statements to cover any Registrable
Securities which are not registered for resale pursuant to a
pre-existing Registration Statement.
(b) Notwithstanding anything
contained herein to the contrary, including the fact that such
Registrable Securities may be registered pursuant to the
Registration Statement referred to in Section 2(d) below, in
the event that the Commission limits the amount of Registrable
Securities that may be included and sold by Holders in any
Registration Statement, including the Initial Registration
Statement, pursuant to Rule 415 or any other basis, the Company may
reduce the number of Registrable Securities included in such
Registration Statement on behalf of the Holders (in case of an
exclusion as to a portion of such Registrable Securities, such
portion shall be allocated pro rata among such Holders first in
proportion to the respective numbers of Registrable Securities
represented by Underlying Shares requested to be registered by each
such Holder over the total amount of Registrable Securities
represented by Underlying Shares, and second in proportion to the
respective numbers of Registrable Securities represented by Shares
requested to be registered by each such Holder over the total
amount of Registrable Securities represented by Shares). In such
event the Company shall give the Holders prompt notice of the
number of the Registrable Securities excluded and the Company will
not be liable for any liquidated damages under Section 2(c),
or otherwise under this Agreement, in connection with the excluded
Registrable Securities. The Company shall use its best efforts at
the first opportunity that is permitted by the Commission to
register for resale the Registrable Securities that were excluded
from being registered on such Registration Statement. Such new
Registration Statement shall be on Form S-3 (except if the Company
is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall
be on another appropriate form for such purpose) and shall contain
(except if otherwise required pursuant to written comments received
from the Commission upon a review of such Registration Statement)
the “Plan of Distribution” in substantially the form
attached hereto as Annex A . The Company shall use its best
efforts to cause each such Registration Statement to be declared
effective under the Securities Act as soon as possible but, in any
event, no later than the 90 th day following the date on which the Company is required to file
such Registration Statement under this Agreement (or the 105th day
following the date on which the Company is required to file such
Registration Statement under this Agreement in the event such
Registration Statement is reviewed by the Commission) (such
90 th or
105 th day,
as the case may be, the “Effectiveness Date” for such
Registration Statement), and shall use its best efforts to keep
such Registration Statement continuously effective under the
Securities Act during the entire Effectiveness Period, subject to
Section 6(d) hereof.
(c) If: (i) a
Registration Statement is not filed on or prior to its Filing Date,
(ii) a Registration Statement is not declared effective by the
Commission on or prior to its required Effectiveness Date, or
(iii) after its Effective Date, such Registration Statement
ceases for any reason to be effective and available to the Holders
as to all Registrable Securities to which it is required to cover
at any time prior to the expiration of its Effectiveness Period for
an aggregate of more than 40 consecutive Trading Days or an
aggregate of 80 Trading Days (which need not be consecutive) in any
given 360-day period, (any such failure or breach being referred to
as an “ Event ,” and for purposes of clauses
(i) or (ii) the date on which such Event occurs, and for
purposes of clause (iii) the date on which such 40 consecutive
or 80 Trading Day-period (as applicable) is exceeded, being
referred to as the “ Event Date ”), then, in
addition to any other rights available to the Holders: (x) on
such Event Date the Company shall pay to each Holder an amount in
cash, as liquidated damages and not as a penalty, equal to 1% of
the aggregate
purchase price paid by such Holder
pursuant to the Purchase Agreement for its Registrable Securities
then held; and (y) on each monthly anniversary of each such
Event Date thereof (if the applicable Event shall not have been
cured by such date) until the applicable Event is cured, the
Company shall pay to each Holder an amount in cash, as partial
liquidated damages and not as a penalty, equal to 1% of the
aggregate purchase price paid by such Holder pursuant to the
Purchase Agreement for its Registrable Securities then held;
provided , that all periods shall be tolled, with respect to
a Holder, by the number of Trading Days during which such Holder
fails to provide the Company with information regarding such Holder
which was reasonably requested by the Company in order to effect
the registration of such Holder’s Registrable Securities
pursuant to Section 6(e) hereof. It shall be a condition
precedent to the obligations of the Company to pay any liquidated
damages pursuant to this Section 2 with respect to the
Registrable Securities of any Holder that such Holder shall furnish
to the Company such information regarding itself and the
Registrable Securities held by it. The partial liquidated damages
pursuant to the terms hereof shall apply on a pro rata basis for
any portion of a month prior to the cure of an Event.
Notwithstanding the foregoing, the maximum payment to an Holder
associated with all Events in the aggregate shall not exceed
(i) in any 30-day period following an Event Date, an aggregate
of 1% of the aggregate purchase price paid by such Holder pursuant
to the Purchase Agreement for its Registrable Securities then held
and (ii) 10% of the aggregate purchase price paid by such
Holder pursuant to the Purchase Agreement for its Registrable
Securities then held.
(d) In the event that the
number of Registrable Securities included in the Initial
Registration Statement or any subsequent Registration Statement are
reduced as provided in Section 2(b) above (such Registrable
Securities, the “Reduction Securities”), the Company
shall prepare and file with the Commission a Registration Statement
covering the resale of the Reduction Securities on Form S-1 (or
another appropriate form for such purpose) . The Registration
Statement shall contain (except if otherwise required pursuant to
written comments received from the Commission upon a review of such
Registration Statement) the “Plan of Distribution” in
substantially the form attached hereto as Annex A . The
Company shall use its best efforts to cause such Registration
Statement to be declared effective under the Securities Act as soon
as possible but, in any event, no later than the Effectiveness Date
for such Registration Statement, and shall use its best efforts to
keep the Registration Statement continuously effective under the
Securities Act for the Effectiveness Period, subject
Section 6(d) hereof. In the event that any Reduction
Securities become registered pursuant to a Registration Statement
on Form S-3 pursuant to Section 2(b) or otherwise, such
Reduction Securities may be removed from the Registration Statement
on Form S-1 contemplated by this Section 2(d).
3. Registration
Procedures
In connection with the
Company’s registration obligations hereunder, the Company
shall:
(a) Not less than three
Trading Days prior to the filing of a Registration Statement or any
related Prospectus or any amendment or supplement thereto, the
Company shall furnish to the Holders copies of all such documents
proposed to be filed (other than those
incorporated by reference).
Notwithstanding the foregoing, the Company shall not be required to
furnish to the Holders any prospectus supplement being prepared and
filed solely to name new or additional selling securityholders
unless such Holders are named in such prospectus supplement. In
addition, in the event that any Registration Statement is on Form
S-1 (or other form which does not permit incorporation by
reference), the Company shall not be required to furnish to the
Holders any prospectus supplement containing information included
in a report or proxy statement filed under the Exchange Act that
would be incorporated by reference in such Registration Statement
if such Registration Statement were on Form S-3 (or other form
which permits incorporation by reference). The Company shall duly
consider any comments made by Holders and received by the Company
not later than two Trading Days prior to the filing of the
Registration Statement, but shall not be required to accept any
such comments to which it reasonably objects.
(b) (i) Prepare and file with
the Commission such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep such
Registration Statement continuously effective as to the applicable
Registrable Securities for its Effectiveness Period and prepare and
file with the Commission such additional Registration Statements in
order to register for resale under the Securities Act all of the
Registrable Securities; (ii) cause the related Prospectus to
be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible to any
comments received from the Commission with respect to each
Registration Statement or any amendment thereto and, as promptly as
reasonably possible provide the Holders true and complete copies of
all correspondence from and to the Commission relating to such
Registration Statement that pertains to the Holders as Selling
Stockholders but not any comments that would result in the
disclosure to the Holders of material and non-public information
concerning the Company; and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange
Act with respect to the Registration Statements and the disposition
of all Registrable Securities covered by each Registration
Statement.
(c) Notify the Holders as
promptly as reasonably possible (and, in the case of (i)(A) below,
not less than three Trading Days prior to such filing) and (if
requested by any such Person) confirm such notice in writing no
later than one Trading Day following the day: (i)(A) when a
Prospectus or any prospectus supplement (but only to the extent
notice is required under Section 3(a) above) or post-effective
amendment to a Registration Statement is proposed to be filed;
(B) when the Commission notifies the Company whether there
will be a “review” of such Registration Statement and
whenever the Commission comments in writing on such Registration
Statement (in which case the Company shall provide true and
complete copies thereof and all written responses thereto to each
of the Holders that pertain to the Holders as a Selling Stockholder
or to the Plan of Distribution, but not information which the
Company believes would constitute material and non-public
information); and (C) with respect to each Registration
Statement or any post-effective amendment, when the same has been
declared effective; (ii) of any request by the Commission or
any other Federal or state governmental authority for amendments or
supplements to a Registration Statement or Prospectus or for
additional information that pertains to the Holders as Selling
Stockholders or the Plan of Distribution; (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of a
Registration Statement covering any or
all of the Registrable Securities or the initiation of any
Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose;
(v) of the occurrence of any event or passage of time that
makes the financial statements included or incorporated by
reference in a Registration Statement ineligible for inclusion or
incorporation by reference therein or any statement made in such
Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to such
Registration Statement, Prospectus or other documents so that, in
the case of such Registration Statement or the Prospectus, as the
case may be, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and
(vi) of the occurrence or existence of any pending corporate
development with respect to the Company that the Company believes
may be material and that, in the determination of the Company,
makes it not in the best interest of the Company to allow continued
availability of a Registration Statement or Prospectus;
provided , that any and all of such information shall remain
confidential to each Holder until such information otherwise
becomes public, unless disclosure by a Holder is required by law;
provided , further , that notwithstanding each
Holder’s agreement to keep such information confidential,
each such Holder makes no acknowledgement that any such information
is material, non-public information.
(d) Use its best efforts to
avoid the issuance of, or, if issued, obtain the withdrawal of
(i) any order suspending the effectiveness of a Registration
Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities
for sale in any jurisdiction, at the earliest practicable
moment.
(e) Furnish to each Holder,
without charge, at least one conformed copy of each Registration
Statement and each amendment thereto and all exhibits to the extent
reasonably requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing
of such documents with the Commission; provided , that the
Company shall have no obligation to provide any document pursuant
to this clause that is available on the EDGAR system.
(f) Promptly deliver to each
Holder, without charge, as many copies of each Prospectus or
Prospectuses (including each form of prospectus) and each amendment
or supplement thereto as such Persons may reasonably request.
Subject to Section 6(d) hereof, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto.
(g) Prior to any public
offering of Registrable Securities, use its best efforts to
register or qualify or cooperate with the selling Holders in
connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws
of those jurisdictions within the United States as any Holder
reasonably requests in writing to keep each such registration or
qualification
(or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the
Registration Statements; provided , that the Company shall
not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or subject the
Company to any material tax in any such jurisdiction where it is
not then so subject.
(h) Cooperate with the
Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to
a transferee pursuant to the Registration Statements, which
certificates shall be free, to the extent permitted by the Purchase
Agreement, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered
in such names as any such Holders may request.
(i) Upon the occurrence of
any event contemplated by Section 3(c)(v), as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to the affected Registration Statements
or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered,
no Registration Statement nor any Prospectus will contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(j) The Company may require
each selling Holder to furnish to the Company a certified statement
as to the number of shares of Common Stock beneficially owned by
such Holder and any Affiliate thereof, and, if required by the
Commission, the natural persons thereof that have voting and
dispositive control over the shares.
4. Registration
Expenses . All fees and expenses incident to the
Company’s performance of or compliance with its obligations
under this Agreement (excluding any underwriting discounts and
selling commissions and all legal fees and expenses of legal
counsel for any Holder) shall be borne by the Company whether or
not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees
and expenses (A) with respect to filings required to be made
with the Trading Market on which the Common Stock is then listed
for trading, and (B) in compliance with applicable state
securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates
for Registrable Securities and of printing prospectuses if the
printing of prospectuses is reasonably requested by the holders of
a majority of the Registrable Securities included in the
Registration Statement), (iii) messenger, telephone and
delivery expenses, (iv) reasonable fees and disbursements of
counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and
(vi) reasonable fees and expenses of all other Persons
retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement. In addition, the
Company shall be responsible for all of its internal expenses
incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit and
the fees and expenses incurred in connection with the listing of
the Registrable Securities on
any securities exchange as required
hereunder. In no event shall the Company be respon
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