AMENDMENT NO. 1 TO 2004 REGISTRATION RIGHTS AGREEMENT
AMENDMENT
NO. 1 TO 2004
This
Amendment No. 1 to 2004 Registration Rights Agreement is made as of July
21,
2005 (this “Amendment”) and amends the Registration Rights Agreement, dated as
of March 19, 2005, by and among Lev Development Corp., a Delaware corporation
(“LDC”) which is a wholly owned subsidiary of Lev Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), and the Holders who are parties thereto
(the “Original Agreement” and together with this Amendment, the “Agreement”). By
its execution hereof, the Company hereby becomes a party to the Agreement.
Terms
used in this Amendment without definition shall have the meanings given them
in
the Original Agreement.
WHEREAS,
as a
result of related merger transactions on December 29, 2004 and February 17,
2005
(the “Merger”), LDC, formerly an independent company known as Lev
Pharmaceuticals, Inc., became a subsidiary of the Company, whose securities
are
publicly traded and registered under the 1934 Act, and the former stockholders
of LDC received shares of Common Stock of the Company in exchange for their
LDC
shares;
WHEREAS,
the
parties to the Original Agreement intended that the registration rights granted
by LDC thereunder apply to the shares of LDC held by the Holders and to the
shares of any successor or parent company which would be received by the
Holders
in exchange for their LDC shares;
WHEREAS,
the
parties hereto desire to amend the Original Agreement in order to give effect
to
the intent of the parties to the Original Agreement and make other appropriate
changes by (i) having the Company assume LDC’s obligations under the
Original Agreement such that they apply to the Company’s Common Stock received
by the Holders in the Merger in exchange for those LDC shares listed on
Exhibit A to the Original Agreement, and making appropriate adjustments
to
the number of Registrable Securities held by each Holder which are set forth
on
Exhibit A hereto to reflect their post-Merger holdings,
(ii) confirming that the Holders’“piggyback” registration rights to have
their shares included in another registration statement filed by the Company
pursuant to Section 1.3 shall continue so long as such registration
statement remains effective, (iii) correcting an error in Exhibit A
to
the Original Agreement which listed Xxxxxx Xxxxxx and Xxxxxx Xxxxxx as Holders
of certain Registrable Securities as of March 19, 2004 which Registrable
Securities were directly owned on such date by Prism Ventures, LLC, of which
Messrs. Xxxxxx and Schein each owned and continue to own a 50% interest,
(iv) further updating Exhibit A to reflect transfers of shares
after
March 19, 2004 by Prism Ventures, LLC to certain affiliated limited liability
companies and Xx. Xxxxxx, (v) permitting assignment of registration
rights to family members of persons who are principals of corporate Holders,
(vi) deleting references to the warrant to purchase LDC common stock
issued
to HAE Associates, LLC because such warrant has been cancelled and
(vii) making other conforming changes; and
WHEREAS,
this
Amendment will be effective when it is executed by the Company, LDC, the
holders
of a majority of the outstanding Emigrant Registrable Securities, and the
holders of a majority of the outstanding Registrable Securities (excluding
the
Emigrant Registrable Securities) in accordance with Section 3.2 of
the
Original Agreement, and will be binding on the Company, LDC and each of the
Holders (whether or not they execute this Amendment);
NOW,
THEREFORE,
in
consideration of the recitals set forth above and the promises and mutual
covenants contained herein, the parties hereby amend the Original Agreement
as
follows:
1. Common
Stock.
Section
1.1.4 of the Original Agreement is amended to read as follows:
“The
term
“Common
Stock”
means
the
Company’s Common Stock, par value $0.01 per share.”
2. Registrable
Securities.
Section
1.1.15 of the Original Agreement is amended to read as follows:
“The
term
“Registrable
Securities”
means:
(i) Common Stock held by each of the Holders in the amount set forth
on
Exhibit A hereto, which amounts represent the respective number of
shares
held by each Holder on March 19, 2004 as adjusted to give effect to the Merger
and shares held by their permitted transferees and other additional Holders
who
have or will become Holders in accordance with Section 3.8 and
(ii) any Equity Securities of the Company issued as (or issuable upon
the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, in exchange for or
in
replacement of the shares referenced in clause (i) above, excluding
in all
cases, however, (a) any Registrable Securities that have been previously
sold
pursuant to a registration statement filed and declared effective by the
SEC,
(b) Registrable Securities that have been sold by a Person in a transaction
in
which his or her rights under this Section 1 are not duly assigned
as
provided herein, (c) any Registrable Securities after such securities have
been
sold in a Public Sale.”
3. The
Warrant.
All
references to the Warrant are hereby deleted.
4. Company
Registration.
The
last sentence of Section 1.3.1 of the Original Agreement is amended to read
as
follows:
“Upon
the
written request of each Holder given within fifteen (15) days after receipt
by
such Holder of notice by the Company, the Company shall, subject to the
provisions of Section 1.3.2 below, cause to be included in such
registration, on the same terms and conditions applicable to and for the
same
period of time that such registration is effective for the other securities
registered thereunder, all of the Registrable Securities that each such Holder
has requested to be so included.”
5. Filing
Obligations of the Company.
The
parenthetical phrase in Section 1.6.1 of the Original Agreement is
amended
to read as follows:
“(or
(i) 2 years in the case of a 415 Registration or (ii) the period
of
time provided in Section 1.3.1 in the case of a Company
Registration)”
6. Section
References.
All
applicable references to Section 1.9 and Subsections thereof in
Section 1.10 of the Original Agreement shall be deemed to refer to
Section 1.10 and Subsections thereof.
7. Assignment.
Section
1.12 of the Original Agreement is amended to read in its entirety as
follows:
“1.12 Assignment
of Registration Rights.
The
rights to cause the Company to register Registrable Securities pursuant to
this
Section 1 may be assigned or transferred (but only with all related
obligations) by a Holder to, (i) in the case of any Holder that is
a
partnership, limited liability company or corporation, any current and former
constituent directors, officers, partners, members, shareholders, subsidiaries
and affiliates of that Holder or any directors, officers, partners, members,
shareholders, Family Members, subsidiaries or affiliates of the foregoing,
and
(ii) a Person who or entity that, after such assignment or transfer,
holds
(along with its Affiliates as defined below) at least 5,000 shares of
Registrable Securities, subject to appropriate adjustment for stock splits,
dividends, reclassifications, recapitalizations, combinations or the like,
provided,
in each
case, that: (i) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (ii) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions
of this
Agreement, including, without limitation, the provisions of Section 1.10.2
above; and (iii) such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Act; provided,
further,
that in
no event shall a Holder transfer such registration rights to a competitor
of the
Company. For the purposes of this Section 1.12, the term “Family
Members”
means,
as applied to any individual, such individual’s spouse, children (including
stepchildren or adopted children), grandchildren, parents, siblings, in-laws,
nieces or nephews or any spouses of any of the foregoing,
and any trust or other estate planning vehicle created for the primary benefit
of any one or more of them, including any custodial arrangement.”
-2-
8. Successors
and Assigns.
The
text of Section 2.1 of the Original Agreement is hereby made a separate
subsection called “2.1.1 General”
and the
following new subsection 2.1.2 is added:
“2.1.2
Assignment
of Original Agreement by LDC to the Company.
Upon
the effectiveness and subject to the terms of this Amendment, LDC hereby
assigns
to the Company all of its rights and obligations under the Original Agreement
and the Company hereby assumes all of such rights and obligations of LDC
as
amended by this Amendment. All references to Common Stock and Registrable
Securities herein shall mean and refer to the securities of the Company for
all
purposes. LDC shall have no further obligations under the
Agreement.”
9. Counterparts.
The
following sentence is added at the end of Section 2.3 of the Original
Agreement:
“This
Agreement may be executed by facsimile or e-mail transmission of a signature
page hereto.”
10. Notices.
The
Company’s address in Section 3(a) of the Original Agreement is amended to
read as follows:
“(a)
in
the case of the Company to 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000,
Attention: Xxxxxx X. Xxxxxx, CEO or by telecopy to (000) 000-0000”
11. Additional
Parties.
The
first sentence of Section 3.8 of the Original Agreement is amended
to read
as follows:
“The
Company and the Holders whose signature pages appear on the signature page
hereto agree that (i) should the Company sell additional shares of
Common
Stock to additional Persons, such Persons, at the Company’s option, may become
Holders hereunder and (ii) permitted transferees of a Holder’s Registrable
Securities and related registration rights in accordance with Section 1.12
may become Holders hereunder by executing a counterpart to this Agreement
as
additional Holders hereunder, and in such case shall have all rights and
obligations of Holders hereunder.”
12. Exhibit A.
Exhibit
A to the Original Agreement is amended to read in its entirety as set forth
in
the form attached to this Amendment as Exhibit A.
13. Full
Force and Effect.
Except
to the extent the Original Agreement is expressly amended by this Amendment,
the
other terms and provisions of the Original Agreement shall remain unmodified
and
in full force and effect. In the event of a conflict between the terms of
the
Original Agreement and the terms of this Amendment, the terms of this Amendment
shall prevail.
*
* *
-3-
IN
WITNESS WHEREOF,
the
parties have executed this Amendment No. 1 to 2004 Registration Rights
Agreement as of the date first above written.
|
LEV
PHARMACEUTICALS, INC.
By:
Xxxxxx
X. Xxxxxx, Ph.D.
Chief
Executive Officer
LEV
DEVELOPMENT CORP.
By:
Xxxxxx
X. Xxxxxx, Ph.D.
Chief
Executive Officer
HOLDERS:
Ajax
Partners
By:
Name:
Title:
Sands
Brothers Venture Capital LLC
By:
SB Venture Capital Management LLC, Manager
By:
Name:
Title:
Sands
Brothers Venture Capital II LLC
By:
SB Venture Capital Management II LLC, Manager
By:
Name:
Title:
|
-4-
|
Sands
Brothers Venture Capital III LLC
By:
SB Venture Capital Management III LLC, Manager
By:
Name:
Title:
Sands
Brothers Venture Capital IV LLC
By:
SB Venture Capital Management IV LLC
By:
Name:
Title:
Targhee
Trust
By:
Name:
Title:
KWG
Trust dated 1/1/04
By:
Name:
Title:
EAH
Heart Associates LLC
By:
EAH Heart Management Associates LLC
By:
Name:
Title:
Xxxxxx Xxxxxxxxxxx Xxxxx
Xxxxxxx
|
-5-
|
Xxxxx
Xxxxxxx
Xxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxx
X. Xxxxxx
Prism
Ventures, LLC
By:
Name:
Title:
Entry
Point Capital LLC
By:
Name:
Title:
Sapphire
Ventures LLC
By:
Name:
Title:
|
-6-
|
Tudor
Technology Ventures LLC
By:
Name:
Title:
Windsor
Ventures LLC
By:
Name:
Title:
Xxxxxx
Partners LLC
By:
Name:
Title:
Emigrant
Capital Corporation
By:
Name:
Title:
Xxxx
Xxxx
Xxxxxxx
Xxxxx
Xxxxx
Xxxxxxxxx
Xxxxx
Xxxxxx
Xxxxxxx
May
|
-7-
Exhibit
A
List
of Holders
|
Holder
|
Registrable
Securities
|
|||
|
Ajax
Partners
|
570,980
|
|||
|
Sands
Brothers Venture Capital LLC
|
95,162
|
|||
|
Sands
Brothers Venture Capital II LLC
|
95,162
|
|||
|
Sands
Brothers Venture Capital III LLC
|
247,426
|
|||
|
Sands
Brothers Venture Capital IV LLC
|
133,230
|
|||
|
Targhee
Trust
|
95,162
|
|||
|
KWG
Trust dated 1/1/04
|
95,162
|
|||
|
EAH
Heart Associates LLC
|
1,941,332
|
|||
|
Xxxxxx
Xxxxxxxxxxx
|
57,098
|
|||
|
Xxxxx
Xxxxxxx
|
19,034
|
|||
|
Xxxxx
Xxxxxxx
|
38,064
|
|||
|
Xxxxxx
Xxxxxxxx
|
19,034
|
|||
|
Xxxxxxx
Xxxxxxx
|
19,034
|
|||
|
Xxxxxx
X. Xxxxxx
|
993,505
|
|||
|
Prism
Ventures, LLC
|
6,851,759
|
|||
|
Entry
Point Capital LLC
|
3,146,099
|
|||
|
Sapphire
Ventures LLC
|
4,011,362
|
|||
|
Tudor
Technology Ventures LLC
|
3,153,368
|
|||
|
Windsor
Ventures LLC
|
5,017,066
|
|||
|
Xxxxxx
Partners LLC
|
5,293,763
|
|||
|
Emigrant
Capital Corporation
|
10,076,116
|
|||
|
Xxxx
Xxxx
|
335,870
|
|||
|
Xxxxxxx
Xxxxx
|
335,870
|
|||
|
Xxxxx
Xxxxxxxxx
|
335,870
|
|||
|
Xxxxx
Xxxxxx
|
335,870
|
|||
|
Xxxxxxx
May
|
89,968
|
|||
A-1
