EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is made and entered into as of December 9, 1997, among Cytogen
Corporation, a Delaware corporation (the "Company"), Southbrook
International Investments, Ltd., a corporation existing under the
laws of the British Virgin Islands ("Southbrook"), Xxxxxxxx
Investments L.P., a Delaware limited partnership ("Xxxxxxxx"),
Montrose Investments L.P., a Cayman Islands exempt limited
partnership ("Montrose"), Heracles Fund, a Cayman Islands exempt
company ("Heracles"), Themis Partners, L.P., a Delaware limited
partnership ("Themis"), Xxxxx Xxxxxxx Strategic Growth Fund,
L.P., a New York limited partnership ("Xxxxx Xxxxxxx XX") and
Xxxxx Xxxxxxx Strategic Growth Fund, Ltd., a Cayman Islands
exempt company ("Xxxxx Xxxxxxx Limited"). Southbrook, Westover,
Montrose, Heracles, Themis and Xxxxx Xxxxxxx XX and Xxxxx Xxxxxxx
Limited are each referred to herein as a "Purchaser" and are
collectively referred to herein as the "Purchasers."
This Agreement is made pursuant to the Convertible
Preferred Stock Purchase Agreement, dated as of the date hereof
among the Company and the Purchasers (the "Purchase Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions
Capitalized terms used and not otherwise defined herein
shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall
have the following meanings:
"Advice" shall have meaning set forth in Section 3(o).
"Affiliate" means, with respect to any Person, any
other Person that directly or indirectly controls or is
controlled by or under common control with such Person. For the
purposes of this definition, "control," when used with respect to
any Person, means the possession, direct or indirect, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms of
"affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
"Business Day" means any day except Saturday, Sunday
and any day which shall be a legal holiday or a day on which
banking institutions in the state of New York generally are
authorized or required by law or other government actions to
close.
"Closing Date" shall have the meaning set forth in the
Purchase Agreement.
"Commission" means the Securities and Exchange
Commission.
"Common Stock" means the Company's Common Stock, par
value $.01 per share.
"Effectiveness Date" means (i) with respect to the
Registration Statement to be filed with respect to the Series B
Shares, the 90th day following the Series B Closing Date, (ii)
with respect to the Registration Statement to be filed with
respect to the Series C Shares, the 90th day following the Series
C Closing Date and (iii) with respect to the Registration
Statement to be filed with respect to the Series D Shares, the
90th day following the Series D Closing Date.
"Effectiveness Period" shall have the meaning set forth
in Section 2(a).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Filing Date" means (i) with respect to the shares of
Common Stock issuable upon conversion of the Series B Shares, the
30th day following the Series B Closing Date, (ii) with respect
to the shares of Common Stock issuable upon conversion of the
Series C Shares, the 30th day following the Series C Closing Date
and (iii) with respect to the shares of Common Stock issuable
upon conversion of the Series D Shares, the 30th day following
the Series D Closing Date.
"Holder" or "Holders" means the holder or holders, as
the case may be, from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth
in Section 5(c).
"Losses" shall have the meaning set forth in Section
5(a).
"Person" means an individual or a corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or political subdivision thereof) or
other entity of any kind.
"Preferred Stock" means the shares of 6% Series B,
Series C and Series D Preferred Stock, par value $.01 per share,
of the Company issued to the Purchasers pursuant to the Purchase
Agreement.
"Proceeding" means an action, claim, suit,
investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
"Prospectus" means the prospectus included in the
Registration Statement (including, without limitation, a
prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration statement
in reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the
Registrable Securities covered by the Registration Statement, and
all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by
reference in such Prospectus.
"Registrable Securities" means (a) with respect to the
Registration Statement to be filed after the Series B Closing,
the shares of Common Stock issuable upon (i) conversion of the
Series B Shares and (ii) payment of dividends in respect of the
Series B Shares, (b) with respect to the Registration Statement
to be filed after the Series C Closing, the shares of Common
Stock issuable upon (i) conversion of the Series C Shares and
(ii) payment of dividends in respect of the Series C Shares and
(c) with respect to the Registration Statement to be filed after
the Series D Closing Date, the shares of Common Stock issuable
upon (i) conversion of the Series D Shares and (ii) payment of
dividends with respect to the Series D Shares; provided, however
that in order to account for the fact that the number of shares
of Common Stock that are issuable upon conversion of shares of
Preferred Stock is determined in part upon the market price of
the Common Stock at the time of conversion, in the case of each
of (a), (b) and (c), Registrable Securities shall include (but
not be limited to) a number of shares of Common Stock equal to no
less than the sum of (1) 175% times the maximum number of shares
of Common Stock into which the applicable series of Preferred
Stock are convertible, assuming such conversion occurred on the
particular Closing Date for such series of Preferred Stock and
(2) the number of shares of Common Stock issuable on payment of
dividends on such Preferred Shares during the two-year period
after the applicable Closing Date assuming all such dividends
were paid in shares of Common Stock. Such registered shares of
Common Stock shall be allocated among the Holders pro rata based
on the total number of Registrable Securities issued or issuable
as of each date that a Registration Statement, as amended,
relating to the resale of the Registrable Securities is declared
effective by the SEC. Notwithstanding anything herein contained
to the contrary, if the actual number of shares of Common Stock
into which the shares of Preferred Stock are convertible exceeds
twice the number of shares of Common Stock into which the
particular series of Preferred Stock are convertible based upon a
computation as at a particular Closing Date, the term
"Registrable Securities" shall be deemed to include such
additional shares of Common Stock.
"Registration Statement" means the registration
statements and any additional registration statements
contemplated by Section 2(a), including (in each case) the
Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated
by reference in such registration statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted
by the Commission having substantially the same effect as such
Rule.
"Rule 158" means Rule 158 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted
by the Commission having substantially the same effect as such
Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted
by the Commission having substantially the same effect as such
Rule.
"Securities Act" means the Securities Act of 1933, as
amended.
"Special Counsel" means any special counsel to the
Holders, for which the Holders will be reimbursed by the Company
pursuant to Section 4.
"Underwritten Registration or Underwritten Offering"
means a registration in connection with which securities of the
Company are sold to an underwriter for reoffering to the public
pursuant to an effective registration statement.
2. Shelf Registration
(A) On or prior to each applicable Filing Date the
Company shall prepare and file with the Commission a "Shelf"
Registration Statement covering all Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415.
The Registration Statement shall be on Form S-3 (except if
otherwise directed by the Holders of a majority in interest of
the applicable Registrable Securities in accordance herewith or
if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, in which case such
registration shall be on another appropriate form in accordance
herewith). The Company shall (i) not permit any securities
other than the Registrable Securities and those securities listed
in Schedule 2.1(u) of the Purchase Agreement to be included in
the Registration Statement and (ii) use its commercially
reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event prior to the
Effectiveness Date, and to keep such Registration Statement
continuously effective under the Securities Act until the date
which is two years after the date that such Registration
Statement is declared effective by the Commission or such earlier
date when all Registrable Securities covered by such Registration
Statement have been sold or may be sold without volume
restrictions pursuant to Rule 144 as determined by the counsel to
the Company pursuant to a written opinion letter, addressed to
the Company's transfer agent to such effect (the "Effectiveness
Period"). If an additional Registration Statement is required to
be filed because the actual number of shares of Common Stock into
which the Preferred Stock is convertible plus shares issuable
upon payment of dividends exceeds the number of shares of Common
Stock initially registered in respect of any particular series of
Preferred Stock based upon the computation on a particular
Closing Date, the Company shall have 15 Business Days to file
such additional Registration Statement, and the Company shall use
its best efforts to cause such additional Registration Statement
to be declared effective by the Commission as soon as possible.
(B) If the Holders of a majority of the Registrable
Securities so elect, an offering of Registrable Securities
pursuant to the Registration Statement may be effected on no more
than two occasions in the form of an Underwritten Offering. In
such event, and if the managing underwriters advise the Company
and such Holders in writing that in their opinion the amount of
Registrable Securities proposed to be sold in such Underwritten
Offering exceeds the amount of Registrable Securities which can
be sold in such Underwritten Offering, there shall be included in
such Underwritten Offering the amount of such Registrable
Securities which in the opinion of such managing underwriters can
be sold, and such amount shall be allocated pro rata among the
Holders proposing to sell Registrable Securities in such
Underwritten Offering. The Holders hereby agree that in
exercising any rights under this Section 2(b) they will cooperate
with the Company so as not to interfere with any underwritten
public offering where the lead underwriter is Union Bank of
Switzerland.
(C) If any of the Registrable Securities are to be
sold in an Underwritten Offering, the investment banker in
interest that will administer the offering will be selected by
the Holders of a majority of the Registrable Securities included
in such offering provided that the Company shall consent to the
inclusion of such investment banker, which consent shall not be
unreasonably withheld. No Holder may participate in any
Underwritten Offering hereunder unless such Holder (i) agrees to
sell its Registrable Securities on the basis provided in any
underwriting agreements approved by the 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 arrangements.
3. Registration Procedures
In connection with the Company's registration
obligations hereunder, the Company shall:
(A) Prepare and file with the Commission on or prior
to each applicable Filing Date, a Registration Statement on Form
S-3 (or if the Company is not then eligible to register for
resale the Registrable Securities on Form S-3 such registration
shall be on another appropriate form in accordance herewith, or,
in connection with an Underwritten Offering hereunder, such other
form agreed to by the Company and by a majority-in-interest of
Holders of Registrable Securities) in accordance with the method
or methods of distribution thereof as specified by the Holders
(except if otherwise directed by the Holders), and cause the
Registration Statement to become effective and remain effective
as provided herein; provided, however, that not less than five
(5) Business Days prior to the filing of the Registration
Statement or any related Prospectus or any amendment or
supplement thereto (including any document that would be
incorporated therein by reference), the Company shall, if
reasonably practicable (i) furnish to the Holders, their Special
Counsel and any managing underwriters, copies of all such
documents proposed to be filed, which documents (other than those
incorporated by reference) will be subject to the review of such
Holders, their Special Counsel and such managing underwriters,
and (ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such
inquiries as shall be necessary, in the reasonable opinion of
respective counsel to such Holders and such underwriters, to
conduct a reasonable investigation within the meaning of the
Securities Act. The Company shall not file the Registration
Statement or any such Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable
Securities, their Special Counsel, or any managing underwriters,
shall reasonably object in writing within three (3) Business Days
of their receipt thereof.
(B) (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the
Registration Statement as may be necessary to keep the
Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period
and prepare and file with the Commission such additional
Registration Statements in order to register for resale under the
Securities Act all of the Registrable Securities; (ii) cause the
related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be
filed pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; (iii) respond as
promptly as possible to any comments received from the Commission
with respect to the Registration Statement or any amendment
thereto and as promptly as possible provide the Holders true and
complete copies of all correspondence from and to the Commission
relating to the Registration Statement; and (iv) comply in all
material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement
during the applicable period in accordance with the intended
methods of disposition by the Holders thereof set forth in the
Registration Statement as so amended or in such Prospectus as so
supplemented.
(C) Notify the Holders of Registrable Securities to be
sold, their Special Counsel and any managing underwriters as
promptly as possible (and, in the case of (i)(A) below, not less
than five (5) days prior to such filing) and (if requested by any
such Person) confirm such notice in writing no later than one (1)
Business Day following the day (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a "review"
of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement and (C) with
respect to the Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any
request by the Commission or any other Federal or state
governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
covering any or all of the Registrable Securities or the
initiation of any Proceedings for that purpose; (iv) if at any
time any of the representations and warranties of the Company
contained in any agreement (including any underwriting agreement)
contemplated hereby ceases to be true and correct in all material
respects; (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale
in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and (vi) of the occurrence of any
event that makes any statement made in the Registration Statement
or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect
or that requires any revisions to the Registration Statement,
Prospectus or other documents so that, in the case of the
Registration Statement or the Prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(D) Use its best efforts to avoid the issuance of, or,
if issued, obtain the withdrawal of (i) any order suspending the
effectiveness of the Registration Statement or (ii) any
suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(E) If requested by any managing underwriter or the
Holders of a majority in interest of the Registrable Securities
to be sold in connection with an Underwritten Offering, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment to the Registration Statement such information as the
Company reasonably agrees should be included therein and (ii)
make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company
has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment; provided,
however, that the Company shall not be required to take any
action pursuant to this Section 3(e) that would, in the opinion
of counsel for the Company, violate applicable law or be
materially detrimental to the business prospects of the Company.
(F) Furnish to each Holder, their Special Counsel and
any managing underwriters, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference,
and all exhibits to the extent requested by such Person
(including those previously furnished or incorporated by
reference) promptly after the filing of such documents with the
Commission.
(G) Promptly deliver to each Holder, their Special
Counsel, and any underwriters, without charge, as many copies of
the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such
Persons may reasonably request; and the Company hereby consents
to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders and any underwriters in
connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or
supplement thereto.
(H) Prior to any public offering of Registrable
Securities, use its best efforts to register or qualify or
cooperate with the selling Holders, any underwriters and their
Special Counsel in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions
within the United States as any Holder or underwriter requests in
writing, to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the
Registrable Securities covered by a Registration Statement;
provided, however, that the Company shall not be required to
qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action that would subject it
to general service of process in any such jurisdiction where it
is not then so subject or subject the Company to any material tax
in any such jurisdiction where it is not then so subject.
(I) Cooperate with the Holders and any managing
underwriters to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
pursuant to a Registration Statement, which certificates shall be
free, to the extent permitted by applicable law, of all
restrictive legends, and to enable such Registrable Securities to
be in such denominations and registered in such names as any such
managing underwriters or Holders may request at least two
Business Days prior to any sale of Registrable Securities.
(J) Upon the occurrence of any event contemplated by
Section 3(c)(vi), as promptly as possible, prepare a supplement
or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein
by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such
Prospectus will contain 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, in light of the
circumstances under which they were made, not misleading.
(K) Use its best efforts to cause all Registrable
Securities relating to such Registration Statement to be listed
on The Nasdaq National Market and any other securities exchange,
quotation system, market or over-the-counter bulletin board, if
any, on which similar securities issued by the Company are then
listed as and when required pursuant to the Purchase Agreement.
(L) Enter into such agreements (including an
underwriting agreement in form, scope and substance as is
customary in Underwritten Offerings) and take all such other
actions in connection therewith (including those reasonably
requested by any managing underwriters and the Holders of a
majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable
Securities, and whether or not an underwriting agreement is
entered into, (i) make such representations and warranties to
such Holders and such underwriters as are customarily made by
issuers to underwriters in underwritten public offerings, and
confirm the same if and when requested; (ii) in the case of an
Underwritten Offering obtain and deliver copies thereof to the
managing underwriters, if any, of opinions of counsel to the
Company and updates thereof addressed to each such underwriter,
in form, scope and substance reasonably satisfactory to any such
managing underwriters and Special Counsel to the selling Holders
covering the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be
reasonably requested by such Special Counsel and underwriters;
(iii) immediately prior to the effectiveness of the Registration
Statement, and, in the case of an Underwritten Offering, at the
time of delivery of any Registrable Securities sold pursuant
thereto, obtain and deliver copies to the Holders and the
managing underwriters, if any, of "cold comfort" letters and
updates thereof from the independent certified public accountants
of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial
statements and financial data is, or is required to be, included
in the Registration Statement), addressed to each selling Holder
and each of the underwriters, if any, in form and substance as
are customary in connection with Underwritten Offerings; (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to
the selling Holders and the underwriters, if any, than those set
forth in Section 6 (or such other provisions and procedures
acceptable to the managing underwriters, if any, and holders of a
majority of Registrable Securities participating in such
Underwritten Offering; and (v) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority of the Registrable Securities being sold, their Special
Counsel and any managing underwriters to evidence the continued
validity of the representations and warranties made pursuant to
clause 3(l)(i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
(M) Make available for inspection by the selling
Holders, any representative of such Holders, any underwriter
participating in any disposition of Registrable Securities, and
any attorney or accountant retained by such selling Holders or
underwriters, at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the officers, directors, agents and
employees of the Company and its subsidiaries to supply all
information in each case reasonably requested by any such Holder,
representative, underwriter, attorney or accountant in connection
with the Registration Statement; provided, however, that any
information that is determined in good faith by the Company in
writing to be of a confidential nature at the time of delivery of
such information shall be kept confidential by such Persons,
unless (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of
regulatory authorities; (ii) disclosure of such information, in
the opinion of counsel to such Person, is required by law; (iii)
such information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard by such
Person; or (iv) such information becomes available to such Person
from a source other than the Company and such source is not known
by such Person to be bound by a confidentiality agreement with
the Company.
(N) Comply in all material respects with all
applicable rules and regulations of the Commission and make
generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 not later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters
in a firm commitment or best efforts Underwritten Offering and
(ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company after
the effective date of the Registration Statement, which statement
shall conform to the requirements of Rule 158.
(O) The Company may require each selling Holder to
furnish to the Company information regarding such Holder and the
distribution of such Registrable Securities as is required by law
to be disclosed in the Registration Statement, and the Company
may exclude from such registration the Registrable Securities of
any such Holder who unreasonably fails to furnish such
information within a reasonable time after receiving such
request.
If the Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company,
then such Holder shall have the right to require (if such
reference to such Holder by name or otherwise is not required by
the Securities Act or any similar Federal statute then in force)
the deletion of the reference to such Holder in any amendment or
supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
Each Holder covenants and agrees that (i) it will not
sell any Registrable Securities under the Registration Statement
until it has received copies of the Prospectus as then amended or
supplemented as contemplated in Section 3(g) and notice from the
Company that such Registration Statement and any post-effective
amendments thereto have become effective as contemplated by
Section 3(c) and (ii) it and its officers, directors or
Affiliates, if any, will comply with the prospectus delivery
requirements of the Securities Act as applicable to them in
connection with sales of Registrable Securities pursuant to the
Registration Statement.
Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the
Company of the occurrence of any event of the kind described in
Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi), such
Holder will forthwith discontinue disposition of such Registrable
Securities under the Registration Statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement contemplated by Section 3(j), or
until it is advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration
Statement.
(P) If (a) there is material non-public information
regarding the Company which the Company's Board of Directors
reasonably determines not to be in the Company's best interest to
disclose and which the Company is not otherwise required to
disclose, or (b) there is a significant business opportunity
(including but not limited to the acquisition or disposition of
assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other similar transaction)
available to the Company which the Company's Board of Directors
reasonably determines not to be in the Company's best interest to
disclose, then the Company may postpone or suspend filing or
effectiveness of a registration statement for a period not to
exceed 20 consecutive days, provided that the Company may not
postpone or suspend its obligation under this Section 3(p) for
more than 60 days in the aggregate during any 12 month period;
provided, however, that no such postponement or suspension shall
be permitted for consecutive 20 day periods, arising out of the
same set of facts, circumstances or transactions.
4. Registration Expenses
(A) All fees and expenses incident to the performance
of or compliance with this Agreement by the Company, except as
and to the extent specified in Section 4(b), shall be borne by
the Company whether or not pursuant to an Underwritten Offering
and whether or not the Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold
pursuant to the Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings
required to be made with The Nasdaq National Market and each
other securities exchange or market on which Registrable
Securities are required hereunder to be listed and (B) in
compliance with state securities or Blue Sky laws (including,
without limitation, fees and disbursements of counsel for the
Holders in connection with Blue Sky qualifications of the
Registrable Securities and determination of the eligibility of
the Registrable Securities for investment under the laws of such
jurisdictions as the managing underwriters, if any, or the
Holders of a majority of Registrable Securities may designate)),
(ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of
printing prospectuses if the printing of prospectuses is
requested by the managing underwriters, if any, or by the holders
of a majority of the Registrable Securities included in the
Registration Statement), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company
and Special Counsel for the Holders, in the case of the Special
Counsel, to a maximum amount of $10,000, (v) Securities Act
liability insurance, if the Company so desires such insurance,
and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall
be responsible for all of its internal expenses incurred in
connection with the consummation of the transactions contemplated
by this Agreement (including, without limitation, all salaries
and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange as required
hereunder.
(B) If the Holders require an Underwritten Offering
pursuant to the terms hereof, the Company shall be responsible
for all costs, fees and expenses in connection therewith, except
for the fees and disbursements of the Underwriters (including any
underwriting commissions and discounts) and their legal counsel
and accountants (which shall be borne by the Holders).
Therefore, in such circumstances the Holder shall bear the
expenses of the fees and disbursements of any legal counsel or
accounting firm retained by the underwriters in connection with
such Underwritten Offering and the costs of any determination
(but not filing) by the underwriters of the eligibility of the
Registrable Securities for investment under the applicable state
securities laws. By way of illustration which is not intended to
diminish from the provisions of Section 4(a), the Holders shall
not be responsible for, and the Company shall be required to pay
the fees or disbursements incurred by the Company (including by
its legal counsel and accountants) in connection with, the
preparation and filing of a Registration Statement and related
Prospectus for such offering, the maintenance of such
Registration Statement in accordance with the terms hereof, the
listing of the Registrable Securities in accordance with the
requirements hereof, and printing expenses incurred to comply
with the requirements hereof.
5. Indemnification
(A) Indemnification by the Company. The Company
shall, notwithstanding any termination of this Agreement,
indemnify and hold harmless each Holder, the officers, directors,
agents (including any underwriters retained by such Holder in
connection with the offer and sale of Registrable Securities),
brokers (including brokers who offer and sell Registrable
Securities as principal as a result of a pledge or any failure to
perform under a margin call of Common Stock), investment advisors
and employees of each of them, each Person who controls any such
Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the
fullest extent permitted by applicable law, from and against any
and all losses, claims, damages, liabilities, costs (including,
without limitation, costs of preparation and attorneys' fees) and
expenses (collectively, "Losses"), as incurred, arising out of or
relating to any untrue or alleged untrue statement of a material
fact contained in the Registration Statement, any Prospectus or
any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating
to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein
(in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which
they were made) not misleading (in the case of any Prospectus or
form of Prospectus or supplement thereto, in light of the
circumstances under which they were made), except to the extent,
but only to the extent, that such untrue statements or omissions
are based solely upon information regarding such Holder furnished
in writing to the Company by such Holder expressly for use
therein, which information was reasonably relied on by the
Company for use therein or to the extent that such information
relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto. The
Company shall notify the Holders promptly of the institution,
threat or assertion of any Proceeding of which the Company is
aware in connection with the transactions contemplated by this
Agreement.
(B) Indemnification by Holders. Each Holder shall,
severally and not jointly, indemnify and hold harmless the
Company, the directors, officers, agents and employees, each
Person who controls the Company (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act), and
the directors, officers, agents or employees of such controlling
Persons, to the fullest extent permitted by applicable law, from
and against all Losses (as determined by a court of competent
jurisdiction in a final judgment not subject to appeal or review)
arising solely out of or based solely upon any untrue statement
of a material fact contained in the Registration Statement, any
Prospectus, or any form of prospectus, or arising solely out of
or based solely upon any omission of a material fact required to
be stated therein or necessary to make the statements therein not
misleading to the extent, but only to the extent, that such
untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company specifically
for inclusion in the Registration Statement or such Prospectus
and that such information was reasonably relied upon by the
Company for use in the Registration Statement, such Prospectus or
such form of prospectus or to the extent that such information
relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of
Prospectus. In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of
the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification
obligation.
(C) Conduct of Indemnification Proceedings. If any
Proceeding shall be brought or asserted against any Person
entitled to indemnity hereunder (an "Indemnified Party"), such
Indemnified Party promptly shall notify the Person from whom
indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the
failure of any Indemnified Party to give such notice shall not
relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that
it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and
materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ
separate counsel in any such Proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party or Parties unless:
(1) the Indemnifying Party has agreed in writing to pay such fees
and expenses; or (2) the Indemnifying Party shall have failed
promptly to assume the defense of such Proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any
such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified
Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel that a conflict of interest is
likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at
the expense of the Indemnifying Party). The Indemnifying Party
shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such
Proceeding.
All fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall
be paid to the Indemnified Party, as incurred, within 10 Business
Days of written notice thereof to the Indemnifying Party
(regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder;
provided, that the Indemnifying Party may require such
Indemnified Party to undertake to reimburse all such fees and
expenses to the extent it is finally judicially determined that
such Indemnified Party is not entitled to indemnification
hereunder).
(D) Contribution. If a claim for indemnification
under Section 5(a) or 5(b) is unavailable to an Indemnified Party
because of a failure or refusal of a governmental authority to
enforce such indemnification in accordance with its terms (by
reason of public policy or otherwise), then each Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified
Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as
any other relevant equitable considerations. The relative fault
of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified
Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as
a result of any Losses shall be deemed to include, subject to the
limitations set forth in Section 5(c), any reasonable attorneys'
or other reasonable fees or expenses incurred by such party in
connection with any Proceeding to the extent such party would
have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d),
no Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the proceeds actually
received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. 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.
The indemnity and contribution agreements contained in
this Section are in addition to any liability that the
Indemnifying Parties may have to the Indemnified Parties.
6. Rule 144
As long as any Holder owns Shares or Underlying Shares,
the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof
pursuant to Section 13(a) or 15(d) of the Exchange Act and to
promptly furnish the Holders with true and complete copies of all
such filings. As long as any Holder owns Shares or Underlying
Shares, if the Company is not required to file reports pursuant
to Section 13(a) or 15(d) of the Exchange Act, it will prepare
and furnish to the Holders and make publicly available in
accordance with Rule 144(c) promulgated under the Securities Act
annual and quarterly financial statements, together with a
discussion and analysis of such financial statements in form and
substance substantially similar to those that would otherwise be
required to be included in reports required by Section 13(a) or
15(d) of the Exchange Act, as well as any other information
required thereby, in the time period that such filings would have
been required to have been made under the Exchange Act. The
Company further covenants that it will take such further action
as any Holder may reasonably request, all to the extent required
from time to time to enable such Person to sell Underlying Shares
without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 promulgated
under the Securities Act, including providing any legal opinions
referred to in the Purchase Agreement. Upon the request of any
Holder, the Company shall deliver to such Holder a written
certification of a duly authorized officer as to whether it has
complied with such requirements.
7. Miscellaneous
(A) Remedies. In the event of a breach by the Company
or by a Holder, of any of their obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to
being entitled to exercise all rights granted by law and under
this Agreement, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not
provide adequate compensation for any losses incurred by reason
of a breach by it of any of the provisions of this Agreement and
hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(B) No Inconsistent Agreements. Neither the Company
nor any of its subsidiaries has, as of the date hereof, nor shall
the Company or any of its subsidiaries, on or after the date of
this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the
provisions hereof. Except as disclosed in Schedule 2.1(u) of the
Purchase Agreement, neither the Company nor any of its
subsidiaries has previously entered into any agreement granting
any registration rights with respect to any of its securities to
any Person. Without limiting the generality of the foregoing,
without the written consent of the Holders of a majority of the
then outstanding Registrable Securities, the Company shall not
grant to any Person the right to request the Company to register
any securities of the Company under the Securities Act unless the
rights so granted are subject in all respects to the prior rights
in full of the Holders set forth herein, and are not otherwise in
conflict or inconsistent with the provisions of this Agreement.
(C) No Piggyback on Registrations. Neither the
Company nor any of its security holders (other than the Holders
in such capacity pursuant hereto or as disclosed in Schedule
2.1(u) of the Purchase Agreement) may include securities of the
Company in the Registration Statement other than the Registrable
Securities or as disclosed in Schedule 2.1(u) of the Purchase
Agreement, and the Company shall not after the date hereof enter
into any agreement providing any such right to any of its
securityholders.
(D) Piggy-Back Registrations. If at any time when
there is not an effective Registration Statement covering
Underlying Shares for any outstanding shares of Preferred Stock,
the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act
of any of its equity securities, other than on Form S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or
other employee benefit plans, the Company shall send to each
holder of Registrable Securities written notice of such
determination and, if within twenty (20) days after receipt of
such notice, any such holder shall so request in writing, the
Company shall include in such registration statement all or any
part of such Registrable Securities such holder requests to be
registered; provided, however, that the Company shall not be
required to register any Registrable Securities pursuant to this
Section 7(d) that are eligible for sale pursuant to Rule 144(k)
of the Commission. In the case of an underwritten public
offering, if the managing underwriter(s) or underwriter(s) should
reasonably object to the inclusion of the Registrable Securities
in such registration statement, then if the Company after
consultation with the Underwriter's Representative should
reasonably determine that the inclusion of such Registrable
Securities, would materially adversely affect the offering
contemplated in such registration statement, and based on such
determination recommends inclusion in such registration statement
of fewer or none of the Registrable Securities of the Holders,
then (x) the number of Registrable Securities of the Holders
included in such registration statement shall be reduced pro-rata
among such Holders (based upon the number of Registrable
Securities requested to be included in the registration), if the
Company after consultation with the underwriter(s) recommends the
inclusion of fewer Registrable Securities, or (y) none of the
Registrable Securities of the Holders shall be included in such
registration statement, if the Company after consultation with
the underwriter(s) recommends the inclusion of none of such
Registrable Securities; provided, however, that if Securities are
being offered for the account of other persons or entities as
well as the Company, such reduction shall not represent a greater
fraction of the number of Registrable Securities intended to be
offered by the Holders than the fraction of similar reductions
imposed on such other persons or entities (other than the
Company).
(E) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless
the same shall be in writing and signed by the Company and the
Holders of at least two-thirds of the then outstanding
Registrable Securities; provided, however, that, for the purposes
of this sentence, Registrable Securities that are owned, directly
or indirectly, by the Company, or an Affiliate of the Company are
not deemed outstanding. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders and that
does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not
be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(F) Notices. Any and all notices or other
communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to
7:00 p.m. (New York City time) on a Business Day, (ii) the
Business Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile
telephone number specified in the Purchase Agreement later than
7:00 p.m. (New York City time) on any date and earlier than 11:59
p.m. (New York City time) on such date, (iii) the Business Day
following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the
party to whom such notice is required to be given to each Holder
at its address set forth under its name on Schedule 1 attached
hereto or such other address as may be designated in writing
hereafter, in the same manner, by such Person. Copies of notices
to any Holder shall be sent to Xxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, Attn: Xxxxxxx X. Xxxxxxxxx, Esq., fax: (000) 000-0000 and
copies of all notices to the Company shall be sent to Xxxxx
Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attn: Xxxxxxxxx Xxxxxx, Esq., fax: (000) 000-0000.
(G) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties and shall inure to the
benefit of each Holder. The Company may not assign its rights or
obligations hereunder without the prior written consent of each
Holder. Each Purchaser may assign its rights hereunder in the
manner and to the Persons as permitted under the Purchase
Agreement.
(H) Assignment of Registration Rights. The rights of
each Holder hereunder, including the right to have the Company
register for resale Registrable Securities in accordance with the
terms of this Agreement, shall be automatically assignable by
each Holder to any Affiliate of such Holder, any other Holder or
Affiliate of any other Holder and up to four other assignees of
all or a portion of the shares of Preferred Stock or the
Registrable Securities if: (i) the Holder agrees in writing with
the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable
time after such assignment, (ii) the Company is, within a
reasonable time after such transfer or assignment, furnished with
written notice of (a) the name and address of such transferee or
assignee, and (b) the securities with respect to which such
registration rights are being transferred or assigned, (iii)
following such transfer or assignment the further disposition of
such securities by the transferee or assignees is restricted
under the Securities Act and applicable state securities laws,
(iv) at or before the time the Company receives the written
notice contemplated by clause (ii) of this Section, the
transferee or assignee agrees in writing with the Company to be
bound by all of the provisions of this Agreement, and (v) such
transfer shall have been made in accordance with the applicable
requirements of the Purchase Agreement. The rights to assignment
shall apply to the Holders (and to subsequent) successors and
assigns.
(I) Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed shall
be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that
any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party
executing (or on whose behalf such signature is executed) the
same with the same force and effect as if such facsimile
signature were the original thereof.
(J) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York, without regard to principles of conflicts of law.
(K) Cumulative Remedies. The remedies provided herein
are cumulative and not exclusive of any remedies provided by law.
(L) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions
set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(M) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(N) Shares Held by The Company and its Affiliates.
Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates
(other than any Holder or transferees or successors or assigns
thereof if such Holder is deemed to be an Affiliate solely by
reason of its holdings of such Registrable Securities) shall not
be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
CYTOGEN CORPORATION SOUTHBROOK INTERNATIONAL INVESTMENTS,
LTD.
By: /s/ Xxxxxx X. XxXxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------- -----------------------------
Name: Xxxxxx X. XxXxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman, President Title: Attornedy In Fact
& Chief Executive Officer
XXXXXXXX INVESTMENTS L.P.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
MONTROSE INVESTMENTS L.P.
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
HERACLES FUND
By Promethean Investment Group
L.L.C., its investment advisor
By: /s/ Xxxxx X. X'Xxxxx, Xx.
------------------------------
Name: Xxxxx X. X'Xxxxx, Xx.
Title: Managing Member
THEMIS PARTNERS, L.P.
By Promethean Investment Group
L.L.C., its general partner
By: /s/ Xxxxx X. X'Xxxxx, Xx.
------------------------------
Name: Xxxxx X. X'Xxxxx, Xx.
Title: Managing Member
XXXXX XXXXXXX STRATEGIC GROWTH
FUND, L.P.
By: /s/ Xxxxxxxx X. Xxx
-----------------------------
Name: Xxxxxxxx X. Xxx
Title: Principal
XXXXX XXXXXXX STRATEGIC GROWTH
FUND, LTD.
By: /s/ Xxxxxxxx X. Xxx
----------------------------
Name: Xxxxxxxx X. Xxx
Title: Principal
