AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT
NO. 1 TO
This
Amendment No. 1 to Registration Rights Agreement is made as of July 18, 2005
(this “Amendment”) and amends the Registration Rights Agreement, dated as of May
3, 2005, by and among Lev Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and the Purchasers who are parties thereto (the “Agreement” and
together with this Amendment, the “Registration Rights Agreement”). Terms used
in this Amendment without definition shall have the meanings given them in
the
Agreement.
WHEREAS,
the Company and the Purchasers entered into the Agreement in connection with
the
Company’s private placement of Units in May 2005 (the “May 2005 Private
Placement”);
WHEREAS,
the Company and the Purchasers desire to amend the Agreement as more fully
set
forth herein to correct certain typographical errors and to reduce the costs
and
expenses of the Company in connection with its obligations under the
Registration Rights Agreement by, among other things, furnishing to Xxxxxxx
& Company (UK) Limited, a United Kingdom corporation, in its capacity as
placement agent of the May 2005 Private Placement (“Xxxxxxx”), copies of certain
documents that were required to be furnished to each of the Holders;
and
WHEREAS,
this Amendment will be effective when it is executed by the Company and Holders
of at least 66.66% of the outstanding Registrable Securities;
NOW
THEREFORE, in consideration of the premises and the agreements hereinafter
set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the each of the parties, the
parties hereby amend the Agreement as follows:
1.
Section
2(d): Piggyback Registration Rights.
Section
2(d) of the Agreement is hereby amended by deleting the reference to
“Section
3(j)”
in the
first parenthetical phrase and replacing it with the reference to “Section
3(h)”.
2.
Section
3(a): Registration Procedures.
Section
3(a) of the Agreement is hereby deleted in its entirety and replaced with the
following language:
“(a)
Not
less than five (5) business days prior to the filing of the Registration
Statement or any related Prospectus or any amendment or supplement thereto,
the
Company shall furnish to Xxxxxxx (and to any Holder that requests in writing
to
also receive a copy), a draft of the Registration Statement, or any related
Prospectus or any amendment or supplement thereto.”
3.
Section
3(c): Registration Procedures.
Section
3(c) of the Agreement is hereby deleted in its entirety and replaced with the
following language:
“(c)
Notify as promptly as reasonably possible Xxxxxxx and each Holder of Registrable
Securities included in the Registration Statement: (i) (A) when a Prospectus
or
any Prospectus supplement or post-effective amendment to the Registration
Statement has been filed, provided
such
Holder has previously requested in writing to receive notice of such filing;
(B)
when the Commission notifies the Company whether there will be a “review” of the
Registration Statement and whenever the Commission comments in writing on the
Registration Statement, provided
such
Holder has previously requested in writing to receive notice of such
notification (and the Company shall upon written request from Xxxxxxx and any
Holder, provide to Xxxxxxx and such Holders, true and complete copies of such
comments and all written responses thereto, subject, if appropriate, to the
execution by Xxxxxxx and such Holders of confidentiality agreements in form
acceptable to the Company); and (C) when the Registration Statement or any
post-effective amendment has become effective; (ii) of any request by the
Commission or any other Federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to the Registration Statement or Prospectus or for additional
information; (iii) of the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness
of
the Registration Statement covering any or all of the Registrable Securities
or
the initiation of any Proceedings for that purpose; (iv) of the receipt by
the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in
any jurisdiction, or the initiation of any Proceeding for such purpose; and
(v)
of the occurrence of any event or passage of time that makes the financial
statements included in the Registration Statement ineligible for inclusion
therein or any statement made in the Registration Statement or Prospectus or
any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires any revisions to the Registration
Statement, Prospectus or other documents so that, in the case of the
Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading.”
4.
Section
5(a): Indemnification by the Company.
Section
5(a) of the Agreement is hereby amended by deleting the following phrase at
the
end of the first sentence: “and prior to the receipt by such Holder of the
Advice contemplated in Section
6(d)”.
5.
Section
5(b): Indemnification by Holder.
Section
5(b) of the Agreement is hereby amended by deleting the following phrase at
the
end of the first sentence: “and prior to the receipt by such Holder of the
Advice contemplated in Section
6(b)”.
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6.
Section
6(c): Notices.
Section
6(c) of the Agreement is hereby deleted in its entirety and replaced with the
following language:
“(c)
Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (i) the Trading Day following the date of delivery to the
courier service, if sent by nationally recognized overnight courier service,
(ii) the third Trading Day following the date of mailing, if sent by
first-class, registered or certified mail, postage prepaid, (iii) the Trading
Day following transmission by electronic mail with receipt confirmed or
acknowledged, or (iv) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices and communications shall
be
delivered and addressed as set forth in the Purchase Agreement or to such other
address as shall be designated in writing from time to time by a party
hereto.”
7.
Full
Force and Effect.
Except
to the extent the Agreement is modified by this Amendment, the other terms
and
provisions of the Agreement shall remain unmodified and in full force and
effect. In the event of a conflict between the terms of the Agreement and the
terms of this Amendment, the terms of this Amendment shall prevail.
* * *
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to
Registration Rights Agreement as of the date first above written.
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The
Company:
LEV
PHARMACEUTICALS, INC.
By:
Xxxxxx
X. Xxxxxx, Ph.D.
Chief
Executive Officer
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ACKNOWLEDGED
AND AGREED TO:
XXXXXXX
& COMPANY (UK) LIMITED
By:
Name:
Title
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Purchasers:
Print
Name
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