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REGISTRATION RIGHTS AGREEMENT
among
IMPAX LABORATORIES, INC.
and
THE INVESTORS NAMED HEREIN
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TABLE OF CONTENTS
Page
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:
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 request shall have the right to withdraw such Demand Registration
request by giving written notice
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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 date hereof shall be subordinate in all respects to the registration rights
held by the holders of the
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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 number of securities should be included, then the Company
shall be required to include in the
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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 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;
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(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 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
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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;
(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
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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
(r) make such representations and warranties (subject to
appropriate disclosure schedule exceptions) to sellers of Registrable Securities
and the underwriters, if any, in form,
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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 such holder sold
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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 any other indemnifying party similarly notified,
to the extent that it may wish, with counsel
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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 omission.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged
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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.
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
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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.
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.
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"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.
"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.
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"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.
"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):
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Xxxx Xxxxxxx
---- -------
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)
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,
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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.
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.: (510)
471-1595, 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.
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(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 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.
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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 MALAYSIA (BERHAD)
By: /s/ Oh Xxx Xxx
----------------------------
Name: Oh Xxx Xxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Xxxxxxx Xxxxx
[Signature Page to Registration Rights Agreement]
