REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made this 16th day of
August, 1999, by and among Derma Sciences, Inc., a Pennsylvania corporation with
offices located at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx ("Xxxxx
Sciences"), and Xxxxx Partners III, L.P., a Delaware limited partnership with
offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxx Partners
International III, L.P., a Delaware limited partnership with offices at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxx Employee Fund III, L.P., a
Delaware limited partnership with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Xxxxxxxxx & Xxxxx California, LLC, a California limited liability
company with offices at Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and
Med-Tec Investors, LLC, a New Jersey limited liability company with offices at
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (these latter individually,
"Purchaser" and collectively, "Purchasers").
This Agreement is made pursuant to the Purchase Agreement of even date
herewith between the Company and the Purchasers (the "Purchase Agreement"). In
order to induce the Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide for the benefit of the Purchasers of the Bonds (as defined
below), and any subsequent holders of Registrable Securities (as defined below),
the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized terms
shall have the following meanings:
Certificate of Preferences and Rights: Means the Certificate of
Preferences and Rights, of the Series C Convertible Stock attached as
Exhibit 4 to the Purchase Agreement.
Closing Date: Has the meaning such term is given in the Purchase
Agreement.
Common Stock: The shares of common stock, par value $.01 per share, of
the Company.
Conversion Date: Has the meaning given in the Convertible Bond
attached as Exhibit 1 to the Purchase Agreement.
Conversion Notification Date: Has the meaning given in the Convertible
Bond attached as Exhibit 1 to the Purchase Agreement.
Conversion Ratio: The Conversion Ratio has the meaning such term is
given in the Certificate of Preferences and Rights.
Conversion Shares: Shares of Common Stock issuable upon the conversion
of the Preferred Shares. Each Preferred Share initially will be convertible
into one Conversion Share.
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Bonds: The Company's Convertible Bonds due August 15, 2000 being sold
and issued pursuant to the Purchase Agreement.
Effective Date: The date that the Resale Registration Statement is
declared effective by the SEC.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
Holder: Each beneficial holder from time to time of Registrable
Securities.
Indemnified Holder: See Section 6(a).
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Preferred Shares: The shares of Series C Convertible Preferred Stock
of the Company, par value $.01 per share, issued pursuant to the
Certificate of Preferences and Rights as part of the Units.
Prospectus: The prospectus included in any Registration Statement, as
supplemented by any prospectus supplement and as amended by all amendments,
including post-effective amendments and all material incorporated by
reference in such prospectus.
Registrable Securities: The Underlying Common Stock; provided that
Underlying Common Stock ceases to be a Registrable Security when it (i) has
been effectively registered under Section 5 of the Securities Act and
disposed of in accordance with any Registration Statement, (ii) has been
distributed to the public pursuant to Rule 144 under the Securities Act
("Rule 144") (or any similar provisions then in force) or (iii) is eligible
for distribution to the public by the Holder pursuant to Rule 144(k) (or
any similar provisions then in force).
Registration Expenses: See Section 5.
Registration Statement: Any registration statement of the Company
which, in accordance with Section 3 hereof, covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such Registration Statement.
Securities Act: The Securities Act of 1933, as amended from time to
time.
SEC: The Securities and Exchange Commission.
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Underlying Common Stock: The Conversion Shares and the Warrant Shares.
Units: The Company's Units, each consisting of one share of Series C
Convertible Preferred Stock, $.01 par value, and one Warrant.
Warrant Agreement: The Warrant Agreement between the Company and
StockTrans, Inc., as warrant agent, attached as Exhibit 5 to the Purchase
Agreement.
Warrant Price: Has the meaning such term is given in the Warrant
Agreement.
Warrants: The Common Stock Purchase Warrants issued pursuant to the
Warrant Agreement and pursuant to the Purchase Agreement.
Warrant Shares: The shares of Common Stock issuable upon exercise of
the Warrants.
2. SECURITIES SUBJECT TO THIS AGREEMENT. Each Holder from time to time
shall be entitled to the benefits of this Agreement. A Person is deemed to be a
Holder whenever such Person is the beneficial owner of Registrable Securities.
The Company is entitled to treat the record holder of Registrable Securities as
beneficial owner of Registrable Securities unless otherwise notified by the
Holder thereof.
3. RESALE REGISTRATION; TIMING OF FILING, EFFECTIVENESS AND PERIOD OF
USABILITY. Subject to the provisions of Section 4 hereof, the Company shall file
not later than 60 days after the Conversion Date, and use its best efforts to
cause to be declared effective not later than 120 days after the Conversion
Date, a Registration Statement on any appropriate form under the Securities Act
for all the Registrable Securities such as to permit the public resale of the
Registrable Securities.
The Company agrees to use its best efforts to keep the Registration
Statement continuously effective and usable for resale of Registrable Securities
until the date which is two (2) years (the "Effectiveness Period") after the
date upon which the Commission declares the Registration Statement effective or
such shorter period which shall terminate when all the Registrable Securities
covered by such Registration Statement have been sold pursuant to such
Registration Statement or when all Registrable Securities otherwise have been
sold pursuant to Rule 144 or are freely tradeable in essentially the same manner
as contemplated in Section 4 below. The Effectiveness Period shall be extended,
day for day, by the length of any "black out" periods declared pursuant to
section 4(l) hereof.
4. REGISTRATION PROCEDURES. In connection with the Company's obligation to
file a Registration Statement as provided in Section 3 hereof, the Company will
as expeditiously as possible:
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(a) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the Holders covered by such
Registration Statement a copy of all such documents proposed to be filed,
which documents will be subject to the review of such Holders, and the
Company will not file any Registration Statement or amendment thereto or
any Prospectus or any supplement thereto to which the Holders of a majority
of the Registrable Securities covered by such Registration Statement shall
reasonably object (provided that the Company may assume, for the purposes
of the foregoing that any Holder has no objection if the Company has not
received notice from such Holder within five business days after delivery
of such documents to such Holder);
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement, and such supplements to the
Prospectus, as may be required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the
Securities Act or rules and regulations thereunder or otherwise necessary
to keep the Registration Statement effective for the applicable period and
cause the Prospectus as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(c) notify each Purchaser and the Holders promptly, and confirm such
advice in writing,
(1) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective,
(2) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, and
(3) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) furnish, without charge, to each Purchaser and, upon request, each
Holder, at least one conformed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, all documents
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incorporated therein by reference and all exhibits (including those
incorporated by reference);
(f) deliver to each Purchaser and each Holder without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons may reasonably request; the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by each Purchaser and each Holder in connection with the
offering and sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto;
(g) use its reasonable efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by
such governmental agencies or authorities as may be necessary to enable the
Holders thereof to consummate the disposition of such Registrable
Securities in such jurisdictions as the Holders may reasonably specify in
response to inquiries to be made by the Company, provided that the Company
will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process in any such jurisdiction
where it is not then so subject;
(h) if any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Company, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of
the circumstances existing at the time it is delivered by a Holder, prepare
a supplement or post-effective amendment to the Registration Statement or
the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
Holders, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading;
(i) obtain a CUSIP number for all Registrable Securities (unless
already obtained), not later than the Effective Date;
(j) make available for inspection during normal business hours by a
representative of the Holders of a majority of the Registrable Securities
and any attorney or accountant retained by such representative, all
financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company's officers, directors and employees
to supply all information reasonably requested by such Holders or any such
attorney or accountant in connection with the Registration Statement;
provided that all such records, information or documents shall be kept
confidential by such Persons unless disclosure of such records, information
or documents is required by court or administrative order or is generally
available to the public other than as a result of disclosure in violation
of this Section 4(j);
(k) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make generally available to its security
holders an earnings statement satisfying the provisions of Section 11(a) of
the Securities Act (in accordance with Rule 158 thereunder or otherwise),
no later than 45 days after the end of the 12-
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month period (or 90 days, if such period is a fiscal year) beginning with
the first month of the Company's first fiscal quarter commencing after the
Effective Date, which statements shall cover said 12-month period;
(l) if at any time an event of the kind described in Section 4(h)
shall occur, notify each Purchaser and the Holders that the use of the
Prospectus must be discontinued (the Company will not declare any such
"black-out" periods in excess of twenty business days during any twelve
month period, unless otherwise required); and
(m) on or prior to the date the Registration Statement is declared
effective by the SEC, cause all of the Underlying Common Stock to be listed
for trading on the Boston Stock Exchange (or on any other national
securities exchange) and the Nasdaq SmallCap Market.
Each Holder as to which any registration is being effected agrees, as
a condition to the registration obligations with respect to such Holder
provided herein, to furnish to the Company such information regarding the
distribution of such Registrable Securities as the Company may from time to
time reasonably request in writing.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company described in Section 4(l), such
Holder will forthwith discontinue disposition of Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(f) hereof, or until it is advised in
writing by the Company (which notice the Company shall give as promptly as
possible), that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
5. REGISTRATION EXPENSES. All of the following expenses ("Registration
Expenses") incident to the Company's performance of or compliance with this
Agreement will be borne by the Company, regardless of whether the Registration
Statement becomes effective:
(1) all registration, filing and listing fees;
(2) fees and expenses of counsel acceptable to the Holders of a
majority of the Registrable Securities for compliance with securities or
blue sky laws;
(3) the Company's printing, messenger, telephone and delivery
expenses;
(4) fees and disbursements of counsel for the Company;
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(5) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit
necessary to satisfy the requirements of the Securities Act); and
(6) fees and expenses associated with any NASD filing required to be
made in connection with the Registration Statement.
The Company will, in any event, pay its internal expenses (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 securities to
be registered on the Boston Stock Exchange and the Nasdaq SmallCap Market.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Holder, its officers, directors, employees and
agents and each Person who controls such Holder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes hereinafter referred to as an
"Indemnified Holder") from and against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
legal expenses) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to
the extent that any such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or alleged untrue
statement or omission or alleged omission thereof based upon information
furnished in writing to the Company by such Holder or its agent expressly
for use therein; provided further, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the Prospectus, if such
untrue statement or alleged untrue statement, omission or alleged omission
was completely corrected in an amendment or supplement to the Prospectus
and if, having previously been furnished by or on behalf of the Company
with copies of the Prospectus as so amended or supplemented, such Holder
thereafter fails to deliver such Prospectus as so amended or supplemented,
prior to or concurrently with the sale of a Registrable Security to the
person asserting such loss, claim, damage, liability or expense who
purchased such Registrable Security which is the subject thereof from such
Holder. This indemnity will be in addition to any liability which the
Company may otherwise have.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against any Indemnified Holder in
respect of which indemnity may be sought from the Company, such Indemnified
Holder shall promptly notify the Company in writing (but the omission to so
notify the Company shall not relieve it of any liability that it may have
against any Indemnified Holder otherwise than under this subsection), and
the Company shall assume the defense thereof, including the employment of
counsel reasonably
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satisfactory to such Indemnified Holder and the payment of all expenses.
Indemnified Holders shall have the right, collectively, to employ their own
counsel in any such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall be the expense of the
Indemnified Holders unless (a) the Company has agreed to pay such fees and
expenses or (b) the Company shall have failed to assume the defense of such
action or proceeding and have failed to employ counsel reasonably
satisfactory to the Indemnified Holders in any such action or proceeding or
(c) the named parties to any such action or proceeding (including any
impleaded parties) include the Indemnified Holders and the Company, and the
Indemnified Holders shall have been advised by counsel that there may be
one or more legal defenses available to the Indemnified Holders which are
different from or additional to those available to the Company (in which
case, if the Indemnified Holders notify the Company in writing that they
elect to employ their own counsel at the expense of the Company, the
Company shall not have the right to assume the defense of such action or
proceeding on behalf of the Indemnified Holders, it being understood,
however, that the Company shall not, in connection with any one such action
or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for the Indemnified Holders which
firm shall be designated in writing by the Indemnified Holders representing
at least a majority of the aggregate principal amount of the outstanding
Registrable Securities). Any such fees and expenses payable by the Company
shall be paid to the Indemnified Holders entitled thereto as incurred by
the Indemnified Holders. The Company shall not be liable for any settlement
of any such action or proceeding effected without its written consent, but
if settled with its written consent, or if there be a final judgment for
the plaintiff in any such action or proceeding, the Company agrees to
indemnify and hold harmless the Indemnified Holders from and against any
loss or liability by reason of such settlement or judgment.
(b) Indemnification by Holder. Each Holder agrees to indemnify and
hold harmless the Company, its respective directors and officers and each
Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to such Holder, but
only with respect to information relating to such Holder furnished in
writing by such Holder expressly for use in any Registration Statement or
Prospectus, or any amendment or supplement thereto, or any preliminary
prospectus. In case any action or proceeding shall be brought against the
Company or its respective directors or officers or any such controlling
person, in respect of which indemnity may be sought against a Holder, such
Holder shall have the rights and duties given the Company, and the Company
or its respective directors or officers or such controlling person shall
have the rights and duties given to each holder by the preceding paragraph.
In no event shall the liability of any Holder hereunder be greater in
amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Contribution. If the indemnification provided for in this Section
6 is unavailable to an indemnified party under Section 6(a) or Section 6(b)
hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages,
8
liabilities or expenses referred to therein, then each applicable
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, claims, damages, liabilities or expenses, (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company from the sale of the Preferred Shares to each Purchaser
pursuant to the Purchase Agreement on the one hand and each Holder from the
offering of the Registrable Securities by such Holder, on the other hand,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and each Holder on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, or liabilities, as well as the other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and each Holder on the other shall be deemed to be in the same
proportion as the aggregate amount paid by each Purchaser to the Company
pursuant to the Purchase Agreement for the Registrable Securities purchased
by such Holder that were sold pursuant to the Registration Statement bears
to the difference (the "Difference") between the amount such Holder paid
for the Registrable Securities that were sold pursuant to the Registration
Statement and the amount received by such Holder from such sale. 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 Company or the particular Holder and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and
the Holders agree that it would not be just and equitable if contributions
pursuant to this Section 6(c) were to be determined by pro rata allocation
or by any other method of allocation that does not take account of the
equitable consideration referred to in the first sentence of this Section
6(c). The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
Section 6(c) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigation or defending against any action or claim that is the subject
of this Section 6(c). Notwithstanding the provisions of this Section 6(c),
each Holder shall not be required to contribute any amount in excess of the
amount by which the Difference 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.
7. RULE 144 AND RULE 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and Section 13(a) or 15(d) of the Exchange Act and the rules and
regulations adopted by the SEC thereunder. If the Company is not subject to the
reporting requirements of Section 13 or 15 of the Exchange Act, the Company also
covenants that it will provide the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder which
continue to be "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act and it will take such further action as any holder of
such Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell its Registrable Securities
without
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registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, so long as such provision does not require the
public filing of information relating to the Company which the Company is not
otherwise required to file, (b) Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or (c) any similar rule or regulation
hereafter adopted by the SEC that does not require the public filing of
information relating to the Company. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
8. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to their
securities which is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the
Company's securities under any such agreements.
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the
Holders to include such Registrable Securities in a registration undertaken
pursuant to this Agreement.
(c) 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 Company has obtained the written consent
of Holders of a majority of the Registrable Securities.
(d) Notices. All notices, requests, consents and other communications
hereunder shall be by telecopier, with a copy being mailed by a nationally
recognized overnight express courier, and shall be deemed given when
receipt is acknowledged by transmit confirmation report, and shall be
delivered as addressed as follows:
(1) if to a Purchaser, at the most current address given by the
Purchaser to the Company in accordance with the provisions of this
Section 8(d) which address initially is as set forth at the head of
this Agreement;
(2) if to a Holder, at its address of record as indicated on the
books of the transfer agent and registrar for the Registrable
Securities; and
(3) if to the Company, initially at its address set forth at the
head of this Agreement and thereafter at such other addresses notice
of which is given in accordance with the provisions of this Section
8(d).
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(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York (without reference to
its rules as to conflicts of law) and the federal law of the United States
of America.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the securities sold pursuant to the Purchase
Agreement. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(k) Calculation of Majority. For purposes of determining whether the
Holders of a majority of the Registrable Securities have taken action
pursuant thereto, any Preferred Shares and Warrants then outstanding shall
be deemed to have been converted into Underlying Common Stock which shares
shall be treated as outstanding for purposes hereof.
9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties. Facsimile signatures are considered to be
originals and shall have the same effect.
[Signatures on next page]
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IN WITNESS WHEREOF, the Purchasers and Company have caused this Agreement
to be executed by their duly authorized representatives as of the day and year
first above written.
PURCHASERS:
XXXXX PARTNERS III, L.P.
By: ___________________________
XXXXX PARTNERS INTERNATIONAL III, L.P.
By: ___________________________
XXXXX EMPLOYEE FUND III, L.P.
By: ___________________________
XXXXXXXXX & XXXXX CALIFORNIA, LLC
By: ___________________________
MED-TEC INVESTORS, LLC
By: ___________________________
COMPANY:
DERMA SCIENCES, INC.
By: ___________________________
Xxxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
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