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REGISTRATION RIGHTS AGREEMENT
among
IMPAX LABORATORIES, INC.
and
THE INVESTORS NAMED HEREIN
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TABLE OF CONTENTS
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ARTICLE I...................................................................................1
DEMAND REGISTRATIONS...............................................................1
1.1 Requests for Registration......................................1
1.2 Limitations on Demand Registrations............................2
1.3 Effective Registration Statement...............................3
1.4 Priority on Demand Registrations...............................3
1.5 Selection of Underwriters......................................3
1.6 Other Registration Rights......................................4
ARTICLE II..................................................................................4
OTHER REGISTRATIONS................................................................4
2.1 Right to Piggyback.............................................4
2.2 Priority on Primary Registrations..............................4
2.3 Priority on Secondary Registrations............................4
2.4 Other Registrations............................................5
ARTICLE III.................................................................................5
REGISTRATION PROCEDURES............................................................5
ARTICLE IV..................................................................................9
REGISTRATION EXPENSES..............................................................9
4.1 Company's Fees and Expenses....................................9
4.2 Fees of Counsel to Holders.....................................9
ARTICLE V..................................................................................10
UNDERWRITTEN OFFERINGS............................................................10
5.1 Demand Underwritten Offerings.................................10
5.2 Incidental Underwritten Offerings.............................10
ARTICLE VI.................................................................................11
INDEMNIFICATION...................................................................11
6.1 Indemnification by the Company................................11
6.2 Indemnification by Holders....................................12
6.3 Indemnification Procedures....................................12
6.4 Indemnification of Underwriters...............................13
6.5 Contribution..................................................13
6.6 Timing of Indemnification Payments............................14
ARTICLE VII................................................................................15
RULE 144 .........................................................................15
ARTICLE VIII...............................................................................15
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.......................................15
ARTICLE IX.................................................................................15
MERGERS, ETC......................................................................15
ARTICLE X..................................................................................16
DEFINITIONS.......................................................................16
ARTICLE XI.................................................................................19
MISCELLANEOUS.....................................................................19
11.1 No Inconsistent Agreements....................................19
11.2 Adjustments Affecting Registrable Securities..................19
11.3 Remedies......................................................19
11.4 Amendments and Waivers........................................19
11.5 Successors and Assigns........................................19
11.6 Notices.......................................................20
11.7 Headings......................................................21
11.8 Gender........................................................21
11.9 Invalid Provisions............................................21
11.10 Governing Law.................................................21
11.11 Counterparts..................................................21
This Registration Rights Agreement (this "Agreement") dated as of March 23,
2000, is by and among (i) IMPAX LABORATORIES, INC., a Delaware corporation (the
"Company"), (ii) XXXXXXX US DISCOVERY FUND III, L.P. and XXXXXXX US DISCOVERY
OFFSHORE FUND III, L.P. (collectively, the "Xxxxxxx Funds"), and (iii) CHINA
DEVELOPMENT INDUSTRIAL BANK, INC., PRESIDENT (BVI) INTERNATIONAL INVESTMENT
HOLDINGS LTD., CHEMICAL COMPANY MALAYSIA (BERHAD) and XXXXXXX XXXXX
(collectively, the "Impax Stockholders," and together with the Xxxxxxx Funds,
the "Series 2 Stockholders"). The Series 2 Stockholders, any Series 2 Holder,
and any Transferee are collectively referred to herein as the "Investor Group"
and, individually, an "Investor." Capitalized terms used and not otherwise
defined herein have the respective meanings ascribed thereto in Article X.
W I T N E S S E T H:
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WHEREAS, simultaneously herewith, the Investor Group has purchased an
aggregate of 150,000 shares of Series 2 Preferred pursuant to the terms of the
Stock Purchase Agreements;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Stock Purchase Agreements that the Company and the Investor
Group enter into this Agreement whereby the Company shall grant, and the
Investors shall obtain, the rights relating to the registration of the
Registrable Securities under the Securities Act, as set forth in this Agreement;
NOW, THEREFORE, in connection with the Stock Purchase Agreements and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEMAND REGISTRATIONS
1.1 Requests for Registration. (a) Subject to Section 1.2, at any time and
from time to time on or after the Effective Time, any Series 2 Holder that owns
at least 20,000 shares of Series 2 Preferred may request registration under the
Securities Act of all or part of their Registrable Securities (i) on Form S-1 or
any similar long-form registration statement (any such registration, a
"Long-Form Demand Registration"), or (ii) on Form S-3 or any similar short-form
registration statement (any such registration, a "Short-Form Demand
Registration") if the Company qualifies to use such form. Thereafter, the
Company will use its best efforts to promptly effect the registration of such
Registrable Securities under the Securities Act on the form requested by the
holder or holders making such registration request. All registrations requested
pursuant to this Section 1.1 are referred to herein as "Demand Registrations."
Upon receipt of a request for a Demand Registration, the Company will give
prompt written notice (in any event within three (3) Business Days after its
receipt of such request) of the request for a Demand Registration to all holders
of Registrable Securities not making such request and will include in such
Demand Registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within ten (10) days after
the receipt of the Company's notice. The holders of the Registrable Securities
making any such registration request may, at any time prior to the effective
date of the registration statement relating to any Demand Registration, revoke
such Demand Registration request by providing written notice to the Company.
(b) On or before June 30, 2000, the Company shall prepare and file with the
SEC a registration statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") registering the resale from time to time by the Investors of all
the Registrable Securities (the "Initial Shelf Registration"). The registration
statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by the Investors. If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time, the Company shall use its best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within thirty (30) days of such cessation of
effectiveness amend the Shelf Registration in a manner reasonably expected to
obtain the withdrawal of the order suspending the effectiveness thereof, or to
promptly file an additional Shelf Registration covering all the Registrable
Securities (a "Subsequent Shelf Registration").
1.2 Limitations on Demand Registrations. (a) Each holder of the Registrable
Securities that owns at least 20,000 shares of Series 2 Preferred shall be
entitled to (i) either one (1) Long-Form Demand Registration or one (1)
Short-Form Demand Registration in accordance with Section 1.1(a) and (ii) any
number of Shelf Registrations.
(b) The Company shall be entitled to postpone for a reasonable period of
time not to exceed forty-five (45) days the declaration of effectiveness by the
Securities and Exchange Commission (the "SEC") of any registration statement
otherwise required to be prepared and filed by it if, at the time it receives a
Demand Registration request or at any time during the process of registration,
prior to being declared effective by the SEC, the Board of Directors of the
Company determines, in its reasonable good faith judgment, that such
registration would materially interfere with a business or financial transaction
of substantial importance to the Company (other than an underwritten public
offering of its securities), including, without limitation, any such transaction
involving a material acquisition, consolidation, merger or corporate
reorganization then pending or proposed by its Board of Directors involving the
Company, and the Company promptly gives the holders of the Registrable
Securities written notice of such determination, containing a general statement
of the reasons for such postponement and an approximation of the anticipated
delay; provided, however, that the Company shall not be entitled to postpone
filing a registration statement in response to a Demand Registration for the
twelve (12) months following the expiration of such forty-five day period. In
the event the effectiveness of any registration statement is postponed pursuant
to this paragraph, the holder or holders of the Registrable Securities making a
registration
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request shall have the right to withdraw such Demand Registration request by
giving written notice to the Company within thirty (30) days after receipt of
the notice of postponement (and, in the event of such withdrawal, the right of
the holders of the Registrable Securities to such Demand Registration shall be
reinstated).
1.3 Effective Registration Statement. (a) A Demand Registration requested
pursuant to Section 1.1 of this Agreement shall not be deemed to have been
effected (i) unless a registration statement with respect thereto has become
effective, (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason, and the
Registrable Securities covered thereby have not been sold, or (iii) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied by
reason of (x) a failure by or inability of the Company to satisfy any thereof,
or (y) the occurrence of an event outside the control of the holders of
Registrable Securities.
(b) A Demand Registration requested pursuant to Section 1.1(a) of this
Agreement shall not be deemed to have been effected if holders of Registrable
Securities are not able to register and sell at least 66-2/3% of the amount of
Registrable Securities requested to be included in such registration; provided
that in no case shall holders of Registrable Securities be permitted to utilize
the provisions of this Section 1.3(b) on more than one occasion.
1.4 Priority on Demand Registrations. The Company will not include in any
Demand Registration any securities which are not Registrable Securities without
the written consent of the Series 2 Holder making such Demand Registration
request. If other securities are permitted to be included in a Demand
Registration which is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Securities exceeds the number of Registrable Securities which can be sold in
such offering within a price range acceptable to such Series 2 Holder, the
Company will include in such registration prior to the inclusion of any
securities which are not Registrable Securities the number of Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold, pro rata among the respective holders on the basis of the amount of
Registrable Securities requested to be offered thereby.
1.5 Selection of Underwriters. Any Series 2 Holder requesting a Demand
Registration pursuant to Section 1.1 of this Agreement will have the right to
select the underwriters and the managing underwriters to administer a Demand
Registration and such underwriters and managing underwriters shall be reasonably
acceptable to the Company.
1.6 Other Registration Rights. Except as otherwise provided in this
Agreement, the Company may grant to any Person the right to request the Company
to register any equity securities of the Company, or any securities convertible,
exchangeable or exercisable for or into such securities ("Other Securities");
provided, however, that all such registration rights granted after the
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date hereof shall be subordinate in all respects to the registration rights held
by the holders of the Registrable Securities; provided, further, that the
registration rights granted by this Agreement will rank pari passu with all such
registration rights granted prior to the date hereof.
ARTICLE II
OTHER REGISTRATIONS
2.1 Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration), and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice (in any event within three (3) Business Days
after its receipt of notice of any exercise of other demand registration rights)
to all holders of Registrable Securities of its intention to effect such a
registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within ten (10) days after the receipt of the Company's notice.
2.2 Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, (I) the Registrable Securities, (II) Series 1 Registrable Securities,
(III) up to 165,000 shares of Common Stock issuable upon the exercise of
warrants held by employees or officers or former employees or officers of Xxxxx
Securities (the "Xxxxx Securities") and (IV) up to 225,000 shares of Common
Stock issuable upon the exercise of warrants held by Bear Xxxxxxx Small Cap
Value Portfolio (the "Bear Xxxxxxx Securities"), requested to be included in
such registration, provided, that if the managing underwriters in good faith
determine that a lower number of securities should be included, then the Company
shall be required to include in the underwriting only that lower number of
securities, and the holders of Registrable Securities, Series 1 Registrable
Securities, Xxxxx Securities and Bear Xxxxxxx Securities who have requested
registration shall participate in the underwriting pro rata based upon their
total ownership, on a fully diluted basis, of any such securities requested to
be included in such registration and (iii) third, other securities requested to
be included in such registration.
2.3 Priority on Secondary Registrations. (a) If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the Company
will include in such registration (i) first, the securities requested to be
included therein by the holders requesting such registration, (ii) second, the
Registrable Securities, Series 1 Registrable Securities, the Xxxxx Securities
and the Bear Xxxxxxx Securities requested to be included in such registration,
provided, that if the managing underwriters in good faith determine that a lower
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number of securities should be included, then the Company shall be required to
include in the underwriting only that lower number of securities, and the
holders of Registrable Securities, Series 1 Registrable Securities, Xxxxx
Securities and Bear Xxxxxxx Securities who have requested registration shall
participate in the underwriting pro rata based upon their total ownership, on a
fully diluted basis, of any such securities requested to be included in such
registration and (iii) third, other securities requested to be included in such
registration. The Company hereby agrees that whenever it grants piggyback rights
to any holder of its securities after the date hereof, such holder's piggyback
rights will be expressly subordinated to the piggyback rights granted to the
holders of the Registrable Securities under this Article II.
2.4 Other Registrations. If the Company has previously filed a registration
statement for a Long-Form Demand Registration with respect to Registrable
Securities pursuant to Article I of this Agreement or pursuant to this Article
II, and if such previous registration has not been withdrawn or abandoned, the
Company will not file or cause to be effected any other registration of any of
its equity securities or securities convertible, exchangeable or exercisable for
or into its equity securities under the Securities Act (except on Form S-4 or
S-8 or any successor form), whether on its own behalf or at the request of any
holder or holders of such securities other than the holders of the Registrable
Securities, until a period of at least six (6) months elapsed from the effective
date of such previous registration.
ARTICLE III
REGISTRATION PROCEDURES
Whenever the holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible or,
in the case of clause (q) below, will not:
(a) promptly prepare and file with the SEC a registration statement with
respect to such Registrable Securities (such registration statement to include
all information which the holders of the Registrable Securities to be registered
thereby shall reasonably request) and use its best efforts to promptly cause
such registration statement to become effective, provided that at least five
days before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will (i) furnish to counsel selected by the
Series 2 Holder, copies of all such documents proposed to be filed, and the
Company shall not, in the case of a Demand Registration, file any such documents
to which such counsel shall have reasonably objected on the grounds that such
document does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder, and (ii) notify each
holder of Registrable Securities covered by such registration statement of (x)
any request by the SEC to amend such registration statement
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or amend or supplement any prospectus or (y) any stop order issued or threatened
by the SEC, and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered;
(b) (i) promptly prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary (A) in the case of a Demand Registration, to keep such
registration statement effective for a period of not less than 180 days (except
that such 180-day period shall be (I) shortened to the extent that all shares
are sold thereunder, or (II) extended (x) by the length of any period that a
stop order or similar proceeding is in effect which prohibits the distribution
of the Registrable Securities, and (y) by the number of days during the period
from and including the date on which each seller of Registrable Securities shall
have received a notice delivered pursuant to clause (f) below until the date
when such seller shall have received a copy of the supplemented or amended
prospectus contemplated by clause (f) below), and (B) in the case of a Shelf
Registration, keep such registration statement continually effective, (ii)
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) as soon as reasonably possible furnish to each seller of Registrable
Securities, without charge, such number of conformed copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus and
prospectus supplement and, in each case, including all exhibits) and such other
documents as such seller may reasonably request, all in conformity with the
requirements of the Securities Act, in order to facilitate the disposition of
the Registrable Securities owned by such seller;
(d) use its best efforts promptly to register or qualify the Shares under
such other securities or blue sky laws of such jurisdictions as any seller
thereof shall reasonably request, to keep such registration or qualification in
effect for so long as such registration statement remains in effect and to do
any and all other acts and things which may be reasonably necessary or advisable
to enable such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller, provided, however, that the Company
will not be required to (i) qualify generally to do business as a foreign
corporation in any jurisdiction where it would not otherwise be required to
qualify but for this clause (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) in the case of a Demand Registration or a Piggyback Registration to
which the Series 2 Holders are a party, furnish to each seller of Registrable
Securities a signed copy, addressed to such seller (and the underwriters, if
any) of an opinion of counsel for the Company or special counsel to the selling
stockholders, dated the effective date of such registration statement (and, if
such registration statement includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), reasonably satisfactory
in form and substance to counsel
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selected by such Series 2 Holders, covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) as
are customarily covered in opinions of issuer's counsel delivered to the
underwriters in underwritten public offerings, and such other legal matters as
the seller (or the underwriters, if any) may reasonably request;
(f) promptly notify each seller of Registrable Securities, at a time when a
prospectus relating to the Shares is required to be delivered under the
Securities Act, of the Company's becoming aware that the prospectus included in
such registration statement, as then in effect, contains an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, and, at the request of any such
seller, promptly prepare and furnish such seller a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include 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 not misleading in light of the circumstances under which they
were made;
(g) cause all of the Shares to be listed on each securities exchange on
which similar securities issued by the Company are then listed or, if there
shall then be no such listing, to be accepted for quotation as a Small Cap
Security on The NASDAQ Stock Market;
(h) provide a transfer agent and registrar for all of the Shares not later
than the effective date of such registration statement;
(i) enter into such customary arrangements and take all such other actions
as the Series 2 Holders or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of the Shares;
(j) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement, in each case pursuant to
confidentiality agreements, as appropriate;
(k) cause the Company's officers to make presentations to potential
purchasers of the Shares, as reasonably requested by any seller of Registrable
Securities or any underwriter participating in any disposition pursuant to such
registration statement in connection with one (1) Long-Form Demand Registration;
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(l) subject to other provisions hereof, use its best efforts to cause the
Shares to be registered with or approved by such other governmental agencies or
authorities or self-regulatory organizations as may be necessary to enable the
sellers thereof to consummate the disposition of the Shares;
(m) in connection with a Demand Registration or Piggyback Registration (if
any other participant in such Piggyback Registration receives a "comfort" letter
as described herein), use its best efforts to obtain a "comfort" letter, dated
the effective date of such registration statement (and, if such registration
includes an underwritten offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who have
certified the Company's financial statements, addressed to each seller, and to
the underwriters, if any, covering substantially the same matters with respect
to such registration statement (and the prospectus included therein) and with
respect to events subsequent to the date of such financial statements, as are
customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(n) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC and make available to its security holders, in each case
as soon as practicable, an earnings statement covering a period of at least
twelve months, beginning after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(o) permit any holder of Registrable Securities, which holder, in the sole
judgment exercised in good faith of such holder, might be deemed to be a
controlling person of the Company (within the meaning of the Securities Act or
the Exchange Act), to participate in the preparation of any registration
statement covering such holder's Registrable Securities and to include therein
material, furnished to the Company in writing, which in the reasonable judgment
of such holder should be included and which is reasonably acceptable to the
Company;
(p) use every reasonable effort to obtain the lifting at the earliest
possible time of any stop order suspending the effectiveness of any registration
statement or of any order preventing or suspending the use of any preliminary
prospectus;
(q) at any time file or make any amendment to a registration statement, or
any amendment of or supplement to a prospectus (including amendments of the
documents incorporated by reference into the prospectus), of which each seller
of Registrable Securities or the managing underwriters shall not have previously
been advised and furnished a copy or to which the sellers of Registrable
Securities, the managing underwriters, or counsel for such sellers or for the
underwriters shall reasonably object; and
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(r) make such representations and warranties (subject to appropriate
disclosure schedule exceptions) to sellers of Registrable Securities and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters and selling holders, as the case may be, in underwritten
public offerings of substantially the same type.
Notwithstanding anything herein to the contrary, the Series 2 Holders shall
cease selling shares under a registration statement if the Company, upon the
advice of counsel to the Company, which counsel shall confirm such advice to the
Series 2 Holders, determines that a registration statement requires an amendment
or supplement and has requested in writing that such holder cease to sell under
such registration statement, provided that any relevant time period contained in
this Agreement shall be tolled until such time as the Series 2 Holders shall
receive notice in writing from the Company showing that such holder may continue
to sell under such registration statement.
ARTICLE IV
REGISTRATION EXPENSES
4.1 Company's Fees and Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation,
all registration and filing fees, fees and expenses incident to the Company's or
the Investors' performance of or compliance with a Shelf Registration pursuant
to this Agreement and to the Stock Purchase Agreements (whether or not any of
the registration statements become effective), fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and expenses for listing or quoting the Shares on each securities
exchange or The NASDAQ Stock Market on which similar securities issued by the
Company are then listed or quoted, and fees and disbursements of counsel for the
Company, any transfer agent and all independent certified public accountants,
underwriters (excluding discounts and selling commissions) and other Persons
retained by the Company in connection with any Demand Registration or any
Piggyback Registration (all such expenses being herein called "Registration
Expenses"), will be paid by the Company.
4.2 Fees of Counsel to Holders. In connection with any Demand Registration
or any Shelf Registration hereunder, the Company will reimburse the holders of
Registrable Securities covered by such registration for the reasonable fees and
disbursements of (i) one counsel chosen by the Xxxxxxx Holders if the Xxxxxxx
Holders are registering securities in such registration and (ii) one counsel
chosen by the Impax Holders if the Impax Holders are registering securities in
such registration. In connection with any Piggyback Registration, the holders of
Registrable Securities covered by such registration shall pay for the fees of
their own counsel, if applicable, but such holders shall not be obligated to pay
any portion of the fees of counsel acting on behalf of any other holder or all
holders of securities included in such registration.
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ARTICLE V
UNDERWRITTEN OFFERINGS
5.1 Demand Underwritten Offerings. If requested by the underwriters for any
underwritten offerings of Registrable Securities pursuant to a Demand
Registration, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Series 2 Holders requesting such Demand Registration
and the underwriters, and to contain such representations and warranties by the
Company and such other terms as are generally included in agreements of this
type, including, without limitation, indemnities customarily included in such
agreements. The holders of Registrable Securities to be distributed by such
underwriters may be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. The
Company shall cooperate with any such holder of Registrable Securities in order
to limit any representations or warranties to, or agreements with, the Company
or the underwriters to be made by such holder only to those representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution and any other
representation required by law.
5.2 Incidental Underwritten Offerings. If the Company at any time proposes
to register any of its securities under the Securities Act as contemplated by
Article II of this Agreement and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any holder
of Registrable Securities as provided in Article II of this Agreement, arrange
for such underwriters to include all the Registrable Securities to be offered
and sold by such holder, subject to the limitations set forth in Article II
hereof, among the securities to be distributed by such underwriters. The holders
of Registrable Securities to be distributed by such underwriters shall be
parties to the underwriting agreement between the Company and such underwriters,
and may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holders of
Registrable Securities. The Company shall cooperate with any such holder of
Registrable Securities in order to limit any representations or warranties to,
or agreements with, the Company or the underwriters to be made by such holder
only to those representations, warranties or agreements regarding such holder,
such holder's Registrable Securities and such holder's intended method of
distribution and any other representation required by law.
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ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the extent permitted by law, each of the holders of any
Registrable Securities covered by any registration statement prepared pursuant
to this Agreement, each other Person, if any, who controls such holder within
the meaning of the Securities Act or the Exchange Act, and each of their
respective directors, general partners and officers, as follows:
(i) against any and all loss, liability, claim, damage and expense
arising out of or based upon an untrue statement or alleged untrue
statement of a material fact contained in any registration statement (or
any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of 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;
(ii) against any and all loss, liability, claim, damage and expense to
the extent of the aggregate amount paid in settlement of any litigation,
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or omission or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense incurred by them in connection with
investigating, preparing or defending against any litigation, investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any holder expressly for use in the preparation of any registration statement
(or any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or prospectus (or any
amendment or supplement thereto); and provided further, that the Company will
not be liable to any holder under the indemnity agreement in this Section 6.1,
with respect to any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, liability, claim, damage or expense of such controlling Person or
holder results from the fact that
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such holder sold Registrable Securities to a Person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
final prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Company has previously and timely furnished
copies thereof to such holder and provided further, that the Company will not be
liable to any holder under the indemnity agreement in this Section 6.1, with
respect to a sale by such holder after such time as the Company, upon the
written advice of counsel to the Company, a copy of which shall be provided to
the Xxxxxxx Holders and the Impax Holders, provides notice that a registration
statement requires an amendment or supplement and has requested in writing that
such holder cease to sell under such registration statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such holder or any such director, officer, general partner, or
other controlling person and shall survive the transfer of such securities by
such seller.
6.2 Indemnification by Holders. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such holder agrees to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 6.1 of this Agreement), to the extent
permitted by law, the Company and its directors, officers and controlling
Persons, and their respective directors, officers and general partners, with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such holder, specifically stating that it is for use in the preparation of
such registration statement, preliminary, final or summary prospectus or
amendment or supplement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company, or such
holder, as the case may be, or any of their respective directors, officers,
controlling Persons or general partners and shall survive the transfer of such
securities by such holder. The obligations of each holder of Registrable
Securities pursuant to this Section 6.2 are to be several and not joint;
provided, that, with respect to each claim pursuant to this Section 6.2, each
such holder's maximum liability under this Section shall be limited to an amount
equal to the net proceeds actually received by such holder (after deducting any
underwriting discount and expenses) from the sale of Registrable Securities
being sold pursuant to such registration statement or prospectus by such holder.
6.3 Indemnification Procedures. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding involving a claim referred to in Section 6.1 or Section 6.2 of this
Agreement, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under Section 6.1 or Section 6.2 of this Agreement except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with
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any other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, unless a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, in which case the indemnifying party shall not be liable for the fees and
expenses of (i) more than two counsel for all holders of Registrable Securities,
one of which shall be selected by the Xxxxxxx Holders and one of which shall be
selected by the Impax Holders, or (ii) more than one counsel for the Company in
connection with any one action or separate but similar or related actions. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels. The indemnifying party will
not, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not such indemnified party or any Person who
controls such indemnified party is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability arising out
of such claim, action, suit or proceeding. Notwithstanding anything to the
contrary set forth herein, and without limiting any of the rights set forth
above, in any event any party will have the right to retain, at its own expense,
counsel with respect to the defense of a claim.
6.4 Indemnification of Underwriters. The Company and each holder of
Registrable Securities requesting registration shall provide for the foregoing
indemnity in any underwriting agreement with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority other than the Securities Act.
6.5 Contribution. If the indemnification provided for in Sections 6.1 and
6.2 of this Agreement is unavailable or insufficient to hold harmless an
indemnified party under such Sections, then each indemnifying party shall
contribute to the amount paid or payable to such indemnified party as a result
of the losses, claims, damages or liabilities referred to in Section 6.1 or
Section 6.2 of this Agreement in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, in connection with statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations, including, without limitation, the
relative benefits received by each party from the offering of the securities
covered by such registration statement, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted and the opportunity to correct and prevent any statement or
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omission. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statements or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 6.5
were to be determined by pro rata or per capita allocation (even if the
underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first sentence of this Section 6.5. The amount paid to an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 6.5 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim (which shall be
limited as provided in Section 6.3 of this Agreement if the indemnifying party
has assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this Section 6.5. Promptly after receipt by an
indemnified party under this Section 6.5 of notice of the commencement of any
action against such party in respect of which a claim for contribution may be
made against an indemnifying party under this Section 6.5, such indemnified
party shall notify the indemnifying party in writing of the commencement thereof
if the notice specified in Section 6.3 of this Agreement has not been given with
respect to such action; provided, that the omission to so notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may otherwise have to any indemnified party under this Section 6.5,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. The Company and each holder of Registrable Securities
agrees with each other and the underwriters of the Registrable Securities, if
requested by such underwriters, that (i) the underwriters' portion of such
contribution shall not exceed the underwriting discount and (ii) the amount of
such contribution shall not exceed an amount equal to the net proceeds actually
received by such indemnifying party from the sale of Registrable Securities in
the offering to which the losses, liabilities, claims, damages or expenses of
the indemnified parties relate. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
6.6 Timing of Indemnification Payments. The indemnification required by
this Article VI shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
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ARTICLE VII
RULE 144
The Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder (or, if the Company is not required to file such
reports, it will, upon the request of any holder of Registrable Securities, make
publicly available other information), and it will take such further action as
any holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell shares of Registrable
Securities without registration under the Securities Act within the limitation
of the exemption provided by (i) Rule 144 or Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements. At such time
that all the holders in the Investor Group are able to sell all of their shares
of Registrable Securities pursuant to the exemption provided by Rule 144 under
the Securities Act without any restrictions, then the Company's obligation
pursuant to clause (b) of Article III of this Agreement to maintain the Shelf
Registration shall terminate.
ARTICLE VIII
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registration hereunder unless
such Person (i) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements and
consistent with the provisions of this Agreement.
ARTICLE IX
MERGERS, ETC.
The Company shall not, directly or indirectly, enter into any merger,
consolidation, or reorganization in which the Company shall not be the surviving
corporation unless the proposed surviving corporation shall, prior to such
merger, consolidation, or reorganization, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Registrable Securities" shall be deemed to be references to the
securities that the Investors or the holders of Registrable Securities would be
entitled to receive in exchange for Registrable Securities under any such
merger, consolidation, or reorganization.
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ARTICLE X
DEFINITIONS
10.1 As used in this Agreement, the following defined terms shall have the
meanings set forth below:
"Agreement" means this Registration Rights Agreement as from time to time
assigned, supplemented or amended or as the terms hereof may be waived.
"Business Day" means a day other than Saturday, Sunday or any day on which
banks in the State of New York are authorized or obligated to close.
"Common Stock" means the Company's Common Stock, par value $.01 per share.
"Designated Entity" means (i) as long as any Registrable Securities are
held by any Xxxxxxx Holder, Xxxxxxx Asset Management, 000 Xxxx Xxxxxx, XX, XX
00000, Attention: Xxxxxx X. Xxxx and Xxxxx X. Xxxxxxx, (ii) as long as any
Registrable Securities are held by any Impax Holder, to such holder at the
address indicated on Schedule 1 to the Stock Purchase Agreements, (iii) if no
Registrable Securities are held by any Xxxxxxx Holder, the entity designated by
the Xxxxxxx Transferee who holds the largest number of Registrable Securities,
and (iv) if no Registrable Securities are held by any Impax Holder, the entity
designated by the Impax Transferee who holds the largest number of Registrable
Securities (in the case of (iii) or (iv), such Transferee shall provide notice
to the Company of such entity in accordance with Section 11.6(a) hereof).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Xxxxxxx Holder" shall have the meaning given it in Section 1.1 of the
Stockholders' Agreement.
"Xxxxxxx Transferee" means a Transferee of a Xxxxxxx Holder.
"Impax Holder" shall have the meaning given it in Section 1.1 of the
Stockholders' Agreement.
"Impax Transferee" means a Transferee of an Impax Holder.
"Person" means any individual, corporation, partnership, association, trust
or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
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"Registrable Securities" means (i) any shares of Common Stock issued or
issuable upon conversion of the Series 2 Preferred and (ii) any securities
issued or issuable with respect to the Common Stock referred to in clause (i) by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise. As to any particular Registrable Securities, such securities will
cease to be Registrable Securities when they have (x) been effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them or (y) been transferred pursuant to Rule
144 (or any similar rule then in force) under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Series 1 Preferred" means the Company's Series 1 Convertible Preferred
Stock, par value $.01 per share, which Series 1 Preferred Stock is convertible
into shares of Common Stock.
"Series 1 Registrable Securities" means (i) any shares of Common Stock
issued or issuable upon conversion of the Series 1 Preferred or exercise of the
Warrants purchased by the Investors pursuant to the Series D Purchase Agreements
and (ii) any securities issued or issuable with respect to the Common Stock
referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. As to any particular Series 1 Registrable
Securities, such securities will cease to be Series 1 Registrable Securities
when they have (x) been effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them or (y)
been transferred pursuant to Rule 144 (or any similar rule then in force) under
the Securities Act.
"Series 2 Holders" means the Xxxxxxx Holders and the Impax Holders.
"Series 2 Preferred" means the Company's Series 2 Convertible Preferred
Stock, par value $.01 per share, which Series 2 Preferred Stock is convertible
into shares of Common Stock.
"Series D Purchase Agreements" means, collectively, the separate Stock and
Warrant Purchase Agreements, dated as of March 2, 1999, between the Company and
each of the Xxxxxxx Funds.
"Shares" means the shares of Registrable Securities registered on the
registration statement filed with the SEC in connection with any Demand
Registration or any Piggyback Registration.
"Stockholders' Agreement" means the Stockholders' Agreement, dated December
14, 1999, as amended on the date hereof, between the Series 2 Stockholders and
certain other parties.
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"Stock Purchase Agreements" means, collectively, the separate Stock
Purchase Agreements, dated as of the date hereof, between the Company and each
Investor.
"Transferee" shall mean any transferee (except for a Series 2 Holder) of
Shares or Conversion Shares (as such terms are defined within the definition of
"Series 2 Holders") from a Series 2 Holder. Transferees shall not include a
transferee of Shares or Conversion Shares sold in either a public offering
pursuant to a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), or pursuant to Rule 144 under the Securities
Act.
10.2 The following terms, when used in this Agreement, shall have the
meanings defined for such terms in the Section set forth below (such definitions
to be equally applicable to both singular and plural forms of the terms
defined):
Term Section
---- -------
Agreement Preamble
Bear Xxxxxxx Securities 2.2
Company Preamble
Consent 11.6(b)
Demand Registrations 1.1(a)
Xxxxxxx Funds Preamble
Impax Stockholders Preamble
Initial Shelf Registration 1.1(b)
Investor Preamble
Investor Group Preamble
Xxxxx Securities 2.2
Long-Form Demand Registration 1.1(a)
Other Securities 1.6
Piggyback Registration 2.1
Registration Expenses 4.1
SEC 1.2(b)
Shares Recitals
Shelf Registration 1.1(b)
Short-Form Demand Registration 1.1(a)
Subsequent Shelf Registration 1.1(b)
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ARTICLE XI
MISCELLANEOUS
11.1 No Inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
11.2 Adjustments Affecting Registrable Securities. The Company will not
effect or permit to occur any combination, subdivision or reclassification of
any of its securities which would adversely affect the ability of the holders of
Registrable Securities to include Registrable Securities in a registration
undertaken pursuant to this Agreement or which, to the extent within its
control, would adversely affect the marketability of such Registrable Securities
in any such registration (including, without limitation, effecting a stock split
or a combination of shares).
11.3 Remedies. In the event of a breach by any party to this Agreement of
its obligations under this Agreement, any party injured by such breach, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The parties agree that the provisions of this Agreement
shall be specifically enforceable, it being agreed by the parties that the
remedy at law, including monetary damages, for breach of any such provision will
be inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is waived.
11.4 Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement will be
effective against the Company or any holder of Registrable Securities, unless
such modification, amendment or waiver is approved in writing by the Company and
each holder of at least 20,000 shares of the Series 2 Preferred. The failure of
any party to enforce any of the provisions of this Agreement will in no way be
construed as a waiver of such provisions and will not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
11.5 Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of the
Investors or the holders of Registrable Securities are also for the benefit of,
and enforceable by, any subsequent holder of Registrable Securities.
-19-
11.6 Notices. (a) Subject to Section 11.6(b) hereof, all notices, requests
and other communications hereunder must be in writing and will be deemed to have
been duly given only if delivered personally or by facsimile transmission or
sent by nationally recognized overnight courier service to (i) the Company, at
00000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Facsimile No.: (000) 000-0000, with a
copy to each of (I) the Law Offices of Xxxxxx X. Xxxxxx, 0000 Xxxx Xxxxxxxx
Xxxx, Xxxxx 00X, Xxxxxxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, Esq. and
(II) Blank Rome Xxxxxxx & XxXxxxxx LLP, Xxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000-0000 Attention: Xxx Xxxxxxx or to (ii) any Series 2 Stockholder or any
subsequent holder of shares of Registrable Securities subject to this Agreement,
to the address of such holder as indicated by the Company's records, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party, with such copies to such
persons as specified by the Company or the Series 2 Stockholder.
All such notices, requests and other communications will (x) if delivered
personally to the address as provided in this Section 11.6(a), be deemed given
upon delivery, (y) if delivered by facsimile transmission to the facsimile
number as described in this Section 11.6(a), be deemed given upon receipt and
(z) if delivered by nationally recognized overnight courier service in the
manner described above to the address as described in this Section 11.6(a), be
deemed given on the Business Day following the day it was sent (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section 11.6(a)). Any party may from time to time change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
(b) So long as any Series 2 Holder holds any Registrable Securities, all
notices and other communications hereunder shall be deemed given to all holders
of the Registrable Securities when given to the Designated Entity in accordance
with Section 11.6(a) hereof. The consent, selection, request, acceptance,
choice, approval and other similar terms used in this Agreement (collectively,
the "Consent") of the Series 2 Holders shall be deemed obtained if any of the
following conditions are satisfied: (i) the Xxxxxxx Funds and the Impax
Stockholders are the only holders of the Registrable Securities and the
Designated Entity shall have obtained the Consent of each holder of at least
20,000 shares of the Series 2 Preferred and shall have given notice to the
Company to such effect in accordance with Section 11.6(a) hereof; (ii) the
Xxxxxxx Funds and the Impax Stockholders are not the only holders of the
Registrable Securities and the Designated Entity shall have obtained the Consent
of the holders of a majority of the Registrable Securities held by all Series 2
Holders, and shall have given notice to the Company to such effect in accordance
with Section 11.6(a) hereof; or (iii) no Registrable Securities are held by a
Series 2 Holder and the Designated Entity shall have obtained the Consent of the
holders of a majority of the Registrable Securities held by the Transferees, and
shall have given notice to the Company to such effect in accordance with Section
11.6(a) hereof; provided, however, that if the Consent relates to a particular
Demand Registration or Piggyback Registration or otherwise only involves or
affects certain holders of the Registrable Securities, only the Registrable
Securities of the holders so participating in such
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registration or so involved or affected shall be included in the Consent
required by clause (iii) of this paragraph.
11.7 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
11.8 Gender. Whenever the pronouns "he" or "his" are used herein they shall
also be deemed to mean "she" or "hers" or "it" or "its" whenever applicable.
Words in the singular shall be read and construed as though in the plural and
words in the plural shall be construed as though in the singular in all cases
where they would so apply.
11.9 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, (iii) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom and
(iv) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
11.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such State without giving effect to the conflicts of
laws principles thereof.
11.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
IMPAX LABORATORIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Co-Chief Executive Officer
XXXXXXX US DISCOVERY FUND III, L.P.
By: XXXXXXX US DISCOVERY PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC, its
general partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx, member
XXXXXXX US DISCOVERY OFFSHORE FUND III, L.P.
By: XXXXXXX US DISCOVERY PARTNERS, L.P.,
its general partner
By: XXXXXXX US DISCOVERY, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx, member
CHINA DEVELOPMENT INDUSTRIAL BANK, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
PRESIDENT (BVI) INTERNATIONAL INVESTMENT
HOLDINGS LTD.
By: /s/ Xxxxx Xxxxx Xxx
-----------------------------------------
Name: Xxxxx Xxxxx Xxx
Title: President
CHEMICAL COMPANY OF MALAYSIA BERHAD
By: /s/ Oh Xxx Xxx
-----------------------------------------
Name: Oh Xxx Xxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxx Xxxxx
