Exhibit 10.49
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of this 7th day of July, 2003 by and among Antares Pharma, Inc. a
Minnesota corporation (the "Company"), and the "Investors" named in that certain
Purchase Agreement, of even date herewith, by and among the Company and the
Investors (the "Purchase Agreement"). Capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Purchase Agreement.
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" means, with respect to any person, any other person which
directly or indirectly controls, is controlled by, or is under common control
with, such person.
"Business Day" means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of business.
"Common Stock" shall mean the Company's common stock, par value $0.01
per share, and any securities into which such shares may hereinafter be
reclassified.
"Investors" shall mean the Investors identified in the Purchase
Agreement and any Affiliate or permitted transferee of any Investor who is a
subsequent holder of any Warrants or Registrable Securities.
"Prospectus" shall mean the prospectus included in any Registration
Statement, 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 such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a registration made
by preparing and filing a Registration Statement or similar document in
compliance with the 1933 Act (as defined below), and the declaration or ordering
of effectiveness of such Registration Statement or document.
"Registrable Securities" shall mean the shares of Common Stock issuable
(i) pursuant to the Purchase Agreement, (ii) upon the exercise of the Warrants,
and (iii) issuable with respect to or in exchange for Registrable Securities;
provided, that, a security shall cease to be a Registrable Security upon sale
pursuant to a Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Warrants" means, warrants to purchase shares of Common Stock issued to
the Investors pursuant to the Purchase Agreement.
"Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Warrants.
2. Registration.
(a) Registration Statements.
(i) Promptly following the closing of the purchase
and sale of the securities contemplated by the Purchase Agreement (the "Closing
Date"), but in no event later than the earlier of (A) thirty (30) days after the
sale by the Company of any shares of Common Stock or other securities to a third
party other than an Investor, or (B) ninety (90) days following the Closing Date
(such earlier date, the "Filing Deadline"), the Company shall prepare and file
with the SEC one Registration Statement on Form S-3 (or, if Form S-3 is not then
available to the Company, on such form of registration statement as is then
available to effect a registration for resale of the Registrable Securities,
subject to the Investors' consent), covering the resale of all of the
Registrable Securities without regard to any limitation on the exercise of the
Warrants issued on the Closing Date. Such Registration Statement also shall
cover, to the extent allowable under the 1933 Act and the rules promulgated
thereunder (including Rule 416), such indeterminate number of additional shares
of Common Stock resulting from stock splits, stock dividends or similar
transactions with respect to the Registrable Securities. The Company shall use
its reasonable best efforts to obtain from each person who has piggyback
registration rights a waiver of those rights with respect to the Registration
Statement. The Registration Statement (and each amendment or supplement thereto,
and each request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors and their counsel prior to its
filing or other submission. If a Registration Statement covering the Registrable
Securities is not filed with the SEC on or prior to the Filing Deadline, the
Company will make pro rata payments to each Investor, as liquidated damages and
not as a penalty, in an amount equal to 1.5% of the aggregate amount invested by
such Investor for each 10-day period or pro rata for any portion thereof
following the date by which such Registration Statement should have been filed
for which no Registration Statement is filed with respect to the Registrable
Securities. Such payments shall be in partial compensation to the Investors, and
shall not constitute the Investors' exclusive remedy for such events. Such
payments shall be made to each Investor in cash. The amounts payable as
liquidated damages pursuant to this paragraph shall be payable in lawful money
of the United States, and amounts payable as liquidated damages shall be paid
within two (2) Business Days of the last day of each such 10-day period during
which the Registration Statement should have been filed for which no
Registration Statement was filed with respect to the Registrable Securities.
(ii) Additional Registrable Securities. Upon the
written demand of any Investor and upon any change in the Warrant Price or any
change in the number of Warrant
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Shares purchaseable under the Warrant (as defined in the Warrants) such that
additional shares of Common Stock become issuable upon the exercise of the
Warrants, the Company shall prepare and file with the SEC one or more
Registration Statements on Form S-3 (or, if Form S-3 is not then available to
the Company, on such form of registration statement as is then available to
effect a registration for resale of such additional shares of Common Stock (the
"Additional Shares")) covering the resale of the Additional Shares, but only to
the extent the Additional Shares are not at the time covered by an effective
Registration Statement. Such Registration Statement also shall cover, to the
extent allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common
Stock resulting from stock splits, stock dividends or similar transactions with
respect to the Additional Shares. The Company shall use its best efforts to
obtain from each person who has piggyback registration rights a waiver of those
rights with respect to such Registration Statement. The Registration Statement
(and each amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided in accordance with Section 3(c) to the
Investors and their counsel prior to its filing or other submission. If a
Registration Statement covering the Additional Shares is required to be filed
under this Section 2(a)(ii) and is not filed with the SEC within ten (10) days
of the request of any Investor, the Company will make pro rata payments to each
Investor, as liquidated damages and not as a penalty, in an amount equal to 1.5%
of the aggregate amount invested by such Investor for each 10-day period or pro
rata for any portion thereof following the date by which such Registration
Statement should have been filed for which no Registration Statement is filed
with respect to the Additional Shares. The amounts payable as liquidated damages
pursuant to this paragraph shall be payable in lawful money of the United
States, and amounts payable as liquidated damages shall be paid within two (2)
Business Days of the last day of each such 10-day period during which the
Registration Statement should have been filed for which no Registration
Statement was filed with respect to the Additional Shares.
(b) Expenses. The Company will pay all expenses
associated with each registration, including filing and printing fees, counsel
and accounting fees and expenses, costs associated with clearing the Registrable
Securities for sale under applicable state securities laws and listing fees, but
excluding the fees and disbursements of more than one law firm serving as
counsel to the Investors and discounts, commissions, fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals
with respect to the Registrable Securities being sold.
(c) Effectiveness.
(i) The Company shall use its best efforts to have
the Registration Statement declared effective not later than the earlier to
occur of (y) 120 days after the date of filing of such Registration Statement,
or (z) five (5) Business Days following the Company's receipt of a no-review
letter from the SEC relating to the Registration Statement; provided, however,
if the Registration Statement is not declared effective within the time period
set forth above, the Company shall continue to use its best efforts to have the
Registration Statement declared effective as soon as possible thereafter. If (A)
the Company does not use its best efforts to have the Registration Statement
declared effective in accordance with the preceding sentence, or (B) after a
Registration Statement has been declared effective by the SEC sales cannot be
made pursuant to such Registration Statement for any reason (including, without
limitation, by
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reason of a stop order, or the Company's failure to update the Registration
Statement), but except as excused pursuant to subparagraph (ii) below, then the
Company will make pro rata payments to each Investor, as liquidated damages and
not as a penalty, in an amount equal to 1.5% of the aggregate amount invested by
such Investor for each 10-day period or pro rata for any portion thereof
following the date (1) by which such Registration Statement should have been
effective as described in (A) above had the Company used its best efforts to
have the Registration Statement declared effective or (2) sales cannot be made
pursuant to such Registration Statement after it has been declared effective as
described in (B) above (the "Blackout Period"). Such payments shall be in
partial compensation to the Investors, and shall not constitute the Investors'
exclusive remedy for such events. The Blackout Period shall terminate upon (x)
the effectiveness of the Registration Statement in the case of (A) above; and
(y) the Registration Statement again being available for sales by the Investors
in the case of (B) above. The amounts payable as liquidated damages pursuant to
this paragraph shall be payable in lawful money of the United States, and
amounts payable as liquidated damages shall be paid within two (2) Business Days
of the last day of each 10-day period following the commencement of the Blackout
Period until the termination of the Blackout Period.
(ii) For not more than fifteen (15) consecutive days
or for a total of not more than thirty (30) days in any twelve (12) month
period, the Company may delay the disclosure of material non-public information
concerning the Company, by terminating or suspending effectiveness of any
registration contemplated by this Section 2 containing such information, the
disclosure of which at the time is not, in the good faith opinion of the
Company, in the best interests of the Company (an "Allowed Delay"); provided,
that the Company shall promptly (a) notify the Investors in writing of the
existence of (but in no event, without the prior written consent of an Investor,
shall the Company disclose to such Investor any of the facts or circumstances
regarding) material non-public information giving rise to an Allowed Delay, and
(b) advise the Investors in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay.
(d) Underwritten Offering. If any offering pursuant
to a Registration Statement filed pursuant to Section 2(a) hereof involves an
underwritten offering, the Company shall have the right to select an investment
banker and manager to administer the offering, which investment banker or
manager shall be reasonably satisfactory to a majority of the Investors.
3. Company Obligations. The Company will use its best efforts to
effect the registration of the Registrable Securities in accordance with the
terms hereof, and pursuant thereto the Company will, as expeditiously as
possible:
(a) use its best efforts to cause such Registration
Statement to become effective and to remain continuously effective for a period
that will terminate upon the date on which all Registrable Securities, covered
by such Registration Statement, as amended from time to time, have been sold;
(b) prepare and file with the SEC such amendments
and post-effective amendments to the Registration Statement and the Prospectus
as may be necessary to keep the Registration Statement effective for the period
specified in Section 3(a) and to comply with the
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provisions of the 1933 Act and the 1934 Act with respect to the distribution of
all Registrable Securities;
(c) provide copies to and permit counsel designated
by the Investors to review each Registration Statement and all amendments and
supplements thereto no fewer than five (5) days prior to their filing with the
SEC and not file any document to which such counsel reasonably objects within
four (4) days following receipt by the Investors and counsel designated by the
Investors of such Registration Statement and/or amendments and supplements
thereto;
(d) furnish to the Investors and their legal counsel
(i) promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company (but not later than two (2) Business Days after
the filing date, receipt date or sending date, as the case may be), at least
five (5) copies of any Registration Statement and any amendment thereto, each
preliminary prospectus and Prospectus and each amendment or supplement thereto,
and each letter written by or on behalf of the Company to the SEC or the staff
of the SEC, and each item of correspondence from the SEC or the staff of the
SEC, in each case relating to such Registration Statement (other than any
portion thereof which contains information for which the Company has sought
confidential treatment), and (ii) such number of copies of a Prospectus,
including a preliminary prospectus, and all amendments and supplements thereto
and such other documents as each Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such Investor,
which in any event, shall not exceed ten (10) Prospectuses;
(e) in the event the Company selects an underwriter
for the offering, the Company shall enter into and perform its reasonable
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the underwriter of such offering;
(f) if required by the underwriter, the Company
shall furnish, on the effective date of the Registration Statement (i) an
opinion, dated as of such date, from independent legal counsel representing the
Company for purposes of such Registration Statement, in form, scope and
substance as is customarily given in an underwritten public offering, addressed
to the underwriter and (ii) a letter, dated such date, from the Company's
independent certified public accountants in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriter and the Investors;
(g) use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness and, if such
order is issued, obtain the withdrawal of any such order at the earliest
possible moment;
(h) prior to any public offering of Registrable
Securities, use its reasonable best efforts to register or qualify or cooperate
with the Investors and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions reasonably requested by the
Investors and do any and all other reasonable acts or things necessary or
advisable to enable the
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distribution in such jurisdictions of the Registrable Securities covered by the
Registration Statement;
(i) cause all Registrable Securities covered by a
Registration Statement to be listed on each securities exchange, interdealer
quotation system or other market on which similar securities issued by the
Company are then listed;
(j) immediately notify the Investors, at any time
when a Prospectus relating to the Registrable Securities is required to be
delivered under the 1933 Act, upon discovery that, or upon the happening of any
event as a result of which, the Prospectus included in such Registration
Statement, as then in effect, includes 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 then
existing, and at the request of any such holder, promptly prepare and furnish to
such holder 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 then existing; and
(k) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC under the 1933 Act and the 1934
Act and take such other actions as may be reasonably necessary to facilitate the
registration of the Registrable Securities hereunder; and make available to its
security holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a period of
at least twelve (12) months, beginning after the effective date of each
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act (for the purpose of this subsection 3(k),
"Availability Date" means the 45th day following the end of the fourth fiscal
quarter that includes the effective date of such Registration Statement, except
that, if such fourth fiscal quarter is the last quarter of the Company's fiscal
year, "Availability Date" means the 90th day after the end of such fourth fiscal
quarter).
4. Due Diligence Review; Information. The Company shall make
available, during normal business hours, for inspection and review by the
Investors, advisors to and representatives of the Investors (who may or may not
be affiliated with the Investors), and any underwriter participating in any
disposition of Common Stock on behalf of the Investors pursuant to a
Registration Statement or amendments or supplements thereto or any blue sky,
NASD or other filing, all financial and other records, all filings with the SEC,
and all other corporate documents and properties of the Company as may be
reasonably necessary for the purpose of such review, and cause the Company's
officers, directors and employees, within a reasonable time period, to supply
all such information reasonably requested by the Investors or any such
representative, advisor or underwriter in connection with such Registration
Statement (including, without limitation, in response to all questions and other
inquiries reasonably made or submitted by any of them), prior to and from time
to time after the filing and effectiveness of the Registration Statement for the
sole purpose of enabling the Investors and such representatives, advisors and
underwriters and their respective accountants and attorneys to conduct initial
and
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ongoing due diligence with respect to the Company and the accuracy of such
Registration Statement.
Notwithstanding the foregoing, the Company shall not disclose material nonpublic
information to the Investors, or to advisors to or representatives of the
Investors, unless prior to disclosure of such information the Company identifies
such information as being material nonpublic information and provides the
Investors, such advisors and representatives with the opportunity to accept or
refuse to accept such material nonpublic information for review.
5. Obligations of the Investors.
(a) Each Investor shall furnish in writing to the
Company such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it,
as shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. At least fifteen (15) Business Days prior
to the first anticipated filing date of any Registration Statement, the Company
shall notify each Investor of the information the Company requires from such
Investor if such Investor elects to have any of the Registrable Securities
included in the Registration Statement. An Investor shall provide such
information to the Company at least five (5) Business Days prior to the first
anticipated filing date of such Registration Statement if such Investor elects
to have any of the Registrable Securities included in the Registration
Statement. For purposes of the first sentence of this Section 3(a), the methods
of distribution to be specified by the Investors shall include, without
limitation, the sale of the Registrable Securities through (i) options
transactions relating to the Registrable Securities, whether such options are
listed on an options exchange or otherwise, or (ii) short sales of the
Registrable Securities. The Registration Statement shall also provide that, for
purposes of the distribution of the Registrable Securities, the Investors may
(i) enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the Registrable
Securities and deliver the Registrable Securities to close out their short
positions or (ii) loan or pledge the Registrable Securities to broker-dealers or
other financial institutions, which in turn may sell the Registrable Securities.
(b) Each Investor, by its acceptance of the
Registrable Securities, agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of a
Registration Statement hereunder, unless such Investor has notified the Company
in writing of its election to exclude all of its Registrable Securities from
such Registration Statement.
(c) In the event the Company, at the request of the
Investors, determines to engage the services of an underwriter, such Investor
agrees to enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter of
such offering and take such other actions as are reasonably required in order to
expedite or facilitate the dispositions of the Registrable Securities.
(d) Each Investor agrees that, upon receipt of any
notice from the Company of the happening of any event rendering a Registration
Statement no longer effective, such Investor will immediately discontinue
disposition of Registrable Securities pursuant to the
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Registration Statement covering such Registrable Securities, until the
Investor's receipt of the copies of the supplemented or amended Prospectus filed
with the SEC and declared effective and, if so directed by the Company, the
Investor shall deliver to the Company (at the expense of the Company) or destroy
(and deliver to the Company a certificate of destruction) all copies in the
Investor's possession of the Prospectus covering the Registrable Securities
current at the time of receipt of such notice.
(e) No Investor may participate in any third party
underwritten registration hereunder unless it (i) agrees to sell the Registrable
Securities on the basis provided in any underwriting arrangements in usual and
customary form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions. Notwithstanding the foregoing, no Investor shall be
required to make any representations to such underwriter, other than those with
respect to itself and the Registrable Securities owned by it, including its
right to sell the Registrable Securities, and any indemnification in favor of
the underwriter by the Investors shall be several and not joint and limited in
the case of any Investor, to the proceeds received by such Investor from the
sale of its Registrable Securities. The scope of any such indemnification in
favor of an underwriter shall be limited to the same extent as the indemnity
provided in Section 6(b) hereof.
6. Indemnification.
(a) Indemnification by the Company. The Company will
indemnify and hold harmless each Investor and their respective Affiliates,
officers, directors, members, employees and agents, successors and assigns,
against any losses, claims, damages or liabilities, joint or several, to which
such seller, officer, director, member, or controlling person may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof; (ii) any blue sky
application or other document executed by the Company specifically for that
purpose or based upon written information furnished by the Company filed in any
state or other jurisdiction in order to qualify any or all of the Registrable
Securities under the securities laws thereof (any such application, document or
information herein called a "Blue Sky Application"); (iii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (iv) any violation
by the Company or its agents of any rule or regulation promulgated under the
1933 Act applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such registration; or (v)
any failure to register or qualify the Registrable Securities included in any
such Registration in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company will undertake such
registration or qualification on an Investor's behalf (the undertaking of any
underwriter chosen by the Company being attributed to the Company) and will
reimburse such Investor, and each such officer, director or member and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
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in any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished in writing by such Investor or any such controlling person
specifically for use in such Registration Statement or Prospectus.
(b) Indemnification by the Investors. In connection
with any registration pursuant to the terms of this Agreement, each Investor
will furnish to the Company in writing such information as the Company
reasonably requests concerning such Investor or the proposed manner of such
Investor's distribution for use in connection with any Registration Statement or
Prospectus and agrees, severally but not jointly, to indemnify and hold
harmless, to the fullest extent permitted by law, the Company, its Subsidiaries
and its and their respective directors, officers, employees, shareholders and
each person who controls the Company (within the meaning of the 0000 Xxx)
against any losses, claims, damages, liabilities and expenses (including
reasonable attorney fees) resulting from any untrue statement of a material fact
or any omission of a material fact required to be stated in the Registration
Statement or Prospectus or preliminary prospectus or amendment or supplement
thereto or necessary to make the statements therein not misleading, to the
extent, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by such Investor to the
Company specifically for inclusion in such Registration Statement or Prospectus
or amendment or supplement thereto. In no event shall the liability of an
Investor be greater in amount than the aggregate dollar amount of the proceeds
(net of all expense paid by such Investor and the amount of any damages such
Investor has otherwise been required to pay by reason of such untrue statement
or omission) received by such Investor upon the sale of the Registrable
Securities included in the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any
person entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon advice of its counsel, a conflict of
interest exists between such person and the indemnifying party with respect to
such claims (in which case, if the person notifies the indemnifying party in
writing that such person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such person); and provided, further, that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more than
one separate firm of attorneys at any time for all such indemnified parties. No
indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
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plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation.
(d) Contribution. If for any reason the
indemnification provided for in the preceding paragraphs (a) and (b) is
unavailable to an indemnified party or insufficient to hold it harmless, other
than as expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act
shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a holder of
Registrable Securities be greater in amount than the aggregate dollar amount of
the proceeds (net of all expenses paid by such holder and the amount of any
damages such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it upon
the sale of the Registrable Securities giving rise to such contribution
obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be
amended only by a writing signed by the parties hereto. The Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the written consent to
such amendment, action or omission to act, of each Investor.
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made as set forth in Section 9.4 of
the Purchase Agreement.
(c) Assignments and Transfers by Investors. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the Investors and their respective successors and assigns. An Investor may
transfer or assign, in whole or from time to time in part, to one or more
persons it rights hereunder in connection with the transfer of Registrable
Securities by such Investor to such person, provided that such Investor complies
with all applicable laws thereto and provides written notice of assignment to
the Company promptly after such assignment is effected.
(d) Assignments and Transfers by the Company. This
Agreement may not be assigned by the Company without the prior written consent
of each Investor, except that without the prior written consent of the
Investors, but after notice duly given, the Company shall assign its rights and
delegate its duties hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of a
merger or consolidation of the Company with or into another corporation or the
sale of all or substantially all of the Company's assets.
(e) Benefits of the Agreement. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective permitted successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer
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upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
(f) Counterparts; Faxes. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Agreement may also be executed via facsimile, which shall be deemed an original.
(g) Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof but shall
be interpreted as if it were written so as to be enforceable to the maximum
extent permitted by applicable law, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. To the extent permitted by applicable law, the
parties hereby waive any provision of law which renders any provisions hereof
prohibited or unenforceable in any respect.
(i) Further Assurances. The parties shall execute
and deliver all such further instruments and documents and take all such other
actions as may reasonably be required to carry out the transactions contemplated
hereby and to evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Applicable Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the date first
above written.
The Company: ANTARES PHARMA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
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The Investors: XMARK FUND, L.P.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Operating Officer
XMARK FUND, LTD.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Operating Officer
SDS MERCHANT FUND, L.P.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Member
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