Exhibit 7
================================================================================
REGISTRATION RIGHTS AGREEMENT
dated
March 2, 1999
among
Global Pharmaceutical Corporation,
Xxxxxxx US Discovery Fund III, L.P.,
and
Xxxxxxx US Discovery Offshore Fund III, L.P.
================================================================================
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..............................3
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....................................................................6
REGISTRATION PROCEDURES................................................6
ARTICLE IV....................................................................10
REGISTRATION EXPENSES.................................................10
4.1 Company's Fees and Expenses...........................10
4.2 Fees of Counsel to Holders............................10
ARTICLE V.....................................................................10
UNDERWRITTEN OFFERINGS................................................10
5.1 Demand Underwritten Offerings.........................10
5.2 Incidental Underwritten Offerings.....................11
ARTICLE VI....................................................................11
INDEMNIFICATION.......................................................11
6.1 Indemnification by the Company........................11
6.2 Indemnification by Holders............................12
6.3 Indemnification Procedures............................13
6.4 Indemnification of Underwriters.......................14
6.5 Contribution..........................................14
6.6 Timing of Indemnification Payments....................15
Page
----
ARTICLE VII...................................................................15
RULE 144..............................................................15
ARTICLE VIII..................................................................16
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS...........................16
ARTICLE IX....................................................................16
MERGERS, ETC..........................................................16
ARTICLE X.....................................................................16
DEFINITIONS...........................................................16
ARTICLE XI....................................................................18
MISCELLANEOUS.........................................................18
11.1 No Inconsistent Agreements............................18
11.2 Adjustments Affecting Registrable Securities..........18
11.3 Remedies..............................................18
11.4 Amendments and Waivers................................19
11.5 Successors and Assigns................................19
11.6 Notices...............................................19
11.7 Headings..............................................21
11.8 Gender................................................21
11.9 Invalid Provisions....................................21
11.10 Governing Law.........................................21
11.11 Counterparts..........................................21
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is dated as of March 2, 1999,
among Global Pharmaceutical Corporation, a Delaware corporation (the "Company"),
Xxxxxxx US Discovery Fund III, L.P. and Xxxxxxx US Discovery Offshore Fund III,
L.P. (collectively, the "Xxxxxxx Funds"). The Xxxxxxx Funds, any Xxxxxxx Holder
and any Transferee are collectively referred to herein as the "Investors" 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 Xxxxxxx Funds have purchased
an aggregate of 50,000 shares of Series D Preferred Stock pursuant to the terms
of the Stock and Warrant Purchase Agreements;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Stock and Warrant Purchase Agreements that the Company and
the Xxxxxxx Funds 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, the parties hereto hereby 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 date hereof, the Xxxxxxx Holders may
request registration under the Securities Act of all or part of their
Registrable Securities on Form S-1 or any similar long-form registration
("Long-Form Demand Registrations"). 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 July 1, 1999, 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) The holders of the
Registrable Securities shall be entitled to (i) one (1) Long-Form Demand
Registration 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
Long-Form Registration otherwise required to be prepared and filed by it if, at
the time it receives a Demand Registration request for a Long-Form Registration
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
-2-
registration request shall have the right to withdraw such Demand Registration
request by giving written notice to the Company within thirty (30) days after
receipt of the notice of postponement (and, in the event of such withdrawal, the
right of the holders of the Registrable Securities to such Demand Registration
shall be reinstated).
1.3 Effective Registration Statement. (a) A Demand Registration
requested pursuant to Section 1.1 of this Agreement shall not be deemed to have
been effected (i) unless a registration statement with respect thereto has
become effective, (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason, and the
Registrable Securities covered thereby have not been sold, or (iii) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied by
reason of (x) a failure by or inability of the Company to satisfy any thereof,
or (y) the occurrence of an event outside the control of the holders of
Registrable Securities.
(b) A Demand Registration requested pursuant to Section 1.1(a) of
this Agreement shall not be deemed to have been effected if holders of
Registrable Securities are not able to register and sell at least 66-2/3% of the
amount of Registrable Securities requested to be included in such registration;
provided that in no case shall holders of Registrable Securities be permitted to
utilize the provisions of this Section 1.3(b) on more than one occasion.
1.4 Priority on Demand Registrations. The Company will not include
in any Demand Registration any securities which are not Registrable Securities
without the written consent of the Xxxxxxx Holders. 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 the Xxxxxxx Holders, 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. The Xxxxxxx Holders 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
-3-
rights shall be subordinate in all respects to the registration rights held by
the holders of the Registrable Securities.
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) 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
(III) 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, 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) Subject to paragraph
(b) of this Section 2.3, 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,
the Xxxxx Securities and the Bear Xxxxxxx Securities requested to be included in
such registration, provided, that if the managing
-4-
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,
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.
(b) 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 and the Registrable Securities, Xxxxx
Securities and 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 requesting such registration, the holders of
Registrable Securities, Xxxxx Securities and Bear Xxxxxxx Securities who
requested to be included in such 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
(ii) second, other securities requested to be included in such registration
pursuant to piggyback rights. The Company hereby agrees that whenever it grants
piggyback rights to any holder of its securities 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.
-5-
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 Xxxxxxx Holders, 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;
(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 Long-Form 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
-6-
(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 Long-Form Demand Registration or a Piggyback
Registration to which the Xxxxxxx 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 the Xxxxxxx Holders, covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of issuer's counsel delivered to
the underwriters in underwritten public offerings, and such other legal matters
as the seller (or the underwriters, if any) may reasonably request;
(f) promptly notify each seller of Registrable Securities, at a time
when a prospectus relating to the Shares is required to be delivered under the
Securities Act, of the Company's becoming aware that the prospectus included in
such registration statement, as then in effect, contains an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, and, at the request of any such
seller, promptly prepare and furnish such seller a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made;
-7-
(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 Xxxxxxx 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 organizations as may be necessary to
enable the sellers thereof to consummate the disposition of the Shares;
(m) in connection with a Long-Form 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;
-8-
(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, 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 Xxxxxxx 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 Xxxxxxx
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 Xxxxxxx Holders shall
receive notice in writing from the Company showing that such holder may continue
to sell under such registration statement.
-9-
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 and Warrant 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 one counsel chosen by the Xxxxxxx Holders.
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.
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 Xxxxxxx Holders 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
-10-
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.
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
-11-
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 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, 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
-12-
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 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 one counsel for all holders of Registrable Securities, selected by the
Xxxxxxx 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
-13-
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 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)
-14-
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 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.
-15-
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
As used in this Agreement, the following defined terms shall have
the meanings set forth below:
"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.
"Demand Registrations" shall have the meaning set forth in Section
1.1(a) hereof.
"Designated Entity" means (i) as long as any Registrable Securities
are held by any Xxxxxxx Holder, Xxxxxxx Capital Management, 000 Xxxx Xxxxxx, XX,
XX 00000, Attention: Xxxxxx X. Xxxx and Xxxxx X. Xxxxxxx and (ii) if no
Registrable Securities are held by any Xxxxxxx Holder, the entity designated by
the Transferee who holds the largest number of
-16-
Registrable Securities (in which case 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 Funds" shall have the meaning set forth in the first
paragraph hereof.
"Xxxxxxx Holders" shall have the meaning given it in Section 3 of
the Stock and Warrant Purchase Agreements.
"Initial Shelf Registration" shall have the meaning set forth in
Section 1.1(b) hereof.
"Investor" or "Investors" shall have the meaning set forth in the
first paragraph hereof.
"Long-Form Demand Registrations" shall have the meaning set forth in
Section 1.1(a) hereof.
"Other Securities" shall have the meaning set forth in Section 1.6
hereof.
"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 D Preferred Stock or exercise of the
Warrants purchased by the Investors pursuant to the Stock and Warrant 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 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.
"SEC" shall have the meaning set forth in Section 1.2 hereof.
"Securities Act" means the Securities Act of 1933, as amended.
-17-
"Series D Preferred Stock" means the Company's Series D Convertible
Preferred Stock, par value $.01 per share, which Series D Preferred Stock is
convertible into shares of Common Stock.
"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.
"Shelf Registration" shall have the meaning set forth in Section
1.1(b) hereof.
"Stock and Warrant 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.
"Subsequent Shelf Registration" shall have the meaning set forth in
Section 1.1(b) hereof.
"Transferees" shall have the meaning given it in Section 3 of the
Stock and Warrant Purchase Agreements.
"Warrants" shall mean Warrants to purchase shares of Common Stock as
more fully set forth in the Stock and Warrant Purchase Agreements.
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
-18-
performance of its rights under this Agreement. The parties agree that the
provisions of this Agreement shall be specifically enforceable, it being agreed
by the parties that the remedy at law, including monetary damages, for breach of
any such provision will be inadequate compensation for any loss and that any
defense in any action for specific performance that a remedy at law would be
adequate is waived.
11.4 Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement will be
effective against the Company or any holder of Registrable Securities, unless
such modification, amendment or waiver is approved in writing by the Company and
the Xxxxxxx Holders. 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 the
parties at the following addresses or facsimile numbers:
(i) If to an Investor or a holder of Registrable Securities, to:
Xxxxxxx Capital Management
000 Xxxx Xxxxxx
XX, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
-19-
(ii) If to the Company, to:
Global Pharmaceutical Corporation
Xxxxxx & Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
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 provided 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 provided in this Section 11.6(a), be deemed
given on the Business Day following the day it was sent (in each case regardless
of whether such notice, request or other communication is received by any other
Person to whom a copy of such notice is to be delivered pursuant to this Section
11.6(a)). Any party may from time to time change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
(b) So long as any Xxxxxxx 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 Xxxxxxx Holders shall be deemed obtained if
any of the following conditions are satisfied: (i) the Xxxxxxx Funds are the
only holders of the Registrable Securities and the Designated Entity shall have
obtained the Consent of each Xxxxxxx Fund and shall have given notice to the
Company to such effect in accordance with Section 11.6(a) hereof; (ii) the
Xxxxxxx Funds 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 Xxxxxxx 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 Xxxxxxx 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
-20-
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.
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.
[remainder of page intentionally left blank]
-21-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
GLOBAL PHARMACEUTICAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and 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
[Signature page to Registration Rights Agreement]
