REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
December 20, 2002, by and between XXXXXX DRUG CO., INC., a New York corporation
(the "Company") and the investors listed on Schedule 1 attached hereto (each an
"Investor" collectively, the "Investors").
WHEREAS, the Company and certain purchasers are parties to that certain
Debenture and Warrant Purchase Agreement dated March 10, 1998 (as such agreement
may be supplemented, amended, or otherwise modified from time to time, the "1998
Purchase Agreement"), whereby the Company issued to such parties the Company's
5% convertible secured debentures due March 15, 2003 (as such debentures may be
supplemented, amended, or otherwise modified from time to time, the " 1998
Debentures" ; each such holder of 1998 Debentures, or any permitted successor,
assign or transferee thereof, a "1998 Holder") and warrants to purchase Common
Stock (the "1998 Warrants")
WHEREAS, in connection with the 1998 Purchase Agreement, the Company
granted to the 1998 Holders registration rights as set forth in Article XI of
the 1998 Purchase Agreement;
WHEREAS, the Company and certain purchasers are parties to that certain
Debenture and Warrant Purchase Agreement dated May 26, 1999 (as such agreement
may be supplemented, amended, or otherwise modified from time to time, the "1999
Purchase Agreement"), whereby the Company issued to such parties the Company's
5% convertible secured debentures due March 15, 2003 (as such debentures may be
supplemented, amended, or otherwise modified from time to time, the "1999
Debentures" each such holder of 1999 Debentures, or any permitted successor,
assign or transferee thereof, a "1999 Holder") and warrants to purchase Common
Stock (the "1999 Warrants")
WHEREAS, in connection with the 1999 Purchase Agreement, the Company
granted to the 1999 Holders registration rights as set forth in Article XI of
the 1 999 Purchase Agreement;
WHEREAS, in connection with the Bridge Loan Agreements, Xxxxx Partners
III, L.P., Xxxxx Partners International III, L.P. and Xxxxx Employee Fund III,
L.P. (collectively, "Xxxxx") holds warrants to purchase an aggregate of
5,385,229 shares of the Company's common stock, $.01 par value per share (the
"Common Stock") as more particularly described on Schedule 2 hereof (the "Bridge
Loan Warrants")
WHEREAS, the Company and Xxxxxx Pharmaceuticals, Inc. ("Xxxxxx") are
parties to that certain Loan Agreement, dated as of March 29, 2000, as amended
by a certain Amendment to Loan Agreement dated as of March 31 , 2000 (as so
amended, the "Loan Agreement")
WHEREAS, in consideration of further amending the Loan Agreement to,
among other things, extend the maturity date of the loan by execution of a
Second Amendment to the Loan Agreement dated as of December 20, 2002,
simultaneously with the execution of this Agreement, the Company will issue to
Xxxxxx a warrant (the "Xxxxxx Warrant") to purchase 10,700,665 shares of the
Common Stock;
WHEREAS, in connection with the 2002 Purchase Agreement, all of the
holders (except Xxxxx) (the "Recap Shareholders") of the 1998 Warrants and the
1999 Warrants have entered into an agreement (the "Recapitalization Agreement"),
dated the date hereof, to recapitalize their interests in the Company by, inter
alia, exchanging their respective warrants for shares of Common Stock (the
"Recap Shares")
WHEREAS, the Company and certain purchasers are parties to that certain
Debenture Purchase Agreement, dated the date hereof (as such agreement may be
supplemented, amended, or otherwise modified from time to time, the "2002
Purchase Agreement"), whereby the Company issued to such parties the Company's
5% convertible senior secured debentures due March 31 , 2006 (as such debentures
may be supplemented, amended, or otherwise modified from time to time, the "2002
Debentures" each such holder of 2002 Debentures, or any permitted successor,
assign or transferee thereof, a "2002 Holder")
WHEREAS, in connection with the 2002 Purchase Agreement, the Company
has agreed to grant to the 2002 Holders registration rights as set forth in this
Agreement;
WHEREAS, the 1998 Holders desire to terminate the registration rights
provisions of the 1 998 Purchase Agreement, the 1999 Holders desire to terminate
the registration rights provisions of the 1999 Purchase Agreement, the holders
of the 1 998 Warrants desire to terminate the registration rights applicable to
the 1 998 Warrants, the holders of the 1999 Warrants desire to terminate the
registration rights applicable to the 1999 Warrants, and Xxxxx desires to
terminate the registration rights applicable to the Bridge Loan Warrants and
such parties desire to enter into this Agreement in lieu therefor to provide for
generally applicable registration rights for all such parties, to the extent
applicable, and to Xxxxxx and the 2002 Holders;
WHEREAS, the Company desires to grant and Xxxxxx, the 1998 Holders, the
1999 Holders, the 2002 Holders, the Recap Shareholders and Xxxxx desire to
obtain, certain registration rights in connection with the Recap Shares, the
Xxxxxx Warrant, the 1998 Debentures, the 1999 Debentures, the 1998 Warrants held
by Xxxxx, the 1999 Warrants held by Xxxxx, the Bridge Loan Warrants and the 2002
Debentures (collectively, the "Securities"); and
WHEREAS, unless otherwise provided in this Agreement, capitalized terms
used herein shall have the meanings set forth in Section 14 hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises contained herein, the parties agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. The Holders may request registration under
the Securities Act of all or any part of their Registrable Securities as
provided for below in Section 1(b). Within ten days after receipt of any such
request, the Company will give written notice of such requested registration to
all other Holders of Registrable Securities. The Company will include in such
registration all Registrable Securities with respect to which it has received
written requests for inclusion therein within 30 days after receipt of the
Company's notice. The Company shall cause its management to cooperate fully and
to use its best efforts to support the
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registration of the Registrable Securities and the sale of the Registrable
Securities pursuant to such registration as promptly as is practicable. Such
cooperation shall include, but not be limited to, management's attendance and
reasonable presentations in respect of the Company at road shows with respect to
the offering of Registrable Securities. The registration requested under this
Section 1 is referred to herein as a "Demand Registration".
(b) Number of Registrations. The Holders of Registrable Securities will
be entitled to request the following number and types of registrations: (i)
Xxxxx shall be entitled to request two Demand Registrations on Form S-1 (or any
successor to such form), (ii) Xxxxxx shall be entitled to request two Demand
Registrations on Form S-1 (or any successor to such form), (iii) the Holders of
at least 20% of the Registrable Securities then outstanding shall be entitled to
request one Demand Registration on Form S-1 (or any successor to such form),
provided that all Demand Registrations requested pursuant to subsections (i) and
(ii) above shall be deemed to have occurred prior to the Demand Registration
pursuant to this subsection (iii), and (iv) the Holders of Registrable
Securities will be entitled to unlimited Demand Registrations on Form 5-3 (or
any successor to such form), for which the Company will pay all Registration
Expenses. A registration will not count as a Demand Registration (x) until it
has become effective, (y) the Holders have sold, in the aggregate, no less than
50% of the shares of Registrable Securities requested to be registered in the
Demand Registration and (z) if the offering of the Registrable Securities
pursuant to such registration is interfered with for any reason by any stop
order, . injunction or other order or requirement of the Commission (other than
any stop order, injunction or other requirement of the Commission prompted by
acts or omissions of Holders of Registrable Securities); provided, however, that
except as otherwise provided herein whether or not it becomes effective the
Company will pay all Registration Expenses in connection with any registration
so initiated.
(c) Priority on Demand Registrations. If a Demand Registration is with
respect to an underwritten offering, and the managing underwriters advise the
Company in writing that in their opinion the number of Registrable Securities
requested to be included exceeds the number which can be sold in such offering,
the Company will include in such registration such number of Shares, which in
the opinion of such underwriters, may be sold, allocated among the Holders
electing to participate pro rata in accordance with the amounts of securities
requested to be so included by the respective Holders. If the amount of such
Registrable Securities does not exceed the maximum number which can be sold in
such offering, the Company may include such number of securities which are not
Registrable Securities in the Demand Registration which will not, together with
the Holder's Registrable Securities, exceed the maximum number which can be sold
in the Offering; provided, however, the Company will not include in any Demand
Registration any securities which are not Registrable Securities without the
written consent of the Holders of sixty and two-thirds percent (66 2/3%) of the
Registrable Securities participating in such registration. A registration shall
not count as a Demand Registration if less than fifty percent (50%) of the
Shares which any Holder desires to include therein are not included due to the
determination of the managing underwriters referred to in the first sentence of
this Section 1(c).
(d) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous registration in which the Holders of Registrable
Securities were given piggyback rights pursuant
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to Section 2 other than a registration of Registrable Securities intended to be
offered on a continuous or delayed basis under Rule 415 or any successor rule
under the Securities Act (a "Shelf Registration").
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration or pursuant to a registration on Forms S-4 or S-8 or any successors
to such forms) and the registration form to be used may be used for the
registration and contemplated disposition of Registrable Securities (a
"Piggyback Registration"), the Company will give prompt written notice to all
the Holders of Registrable Securities. The Company will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 30 days after the receipt
of the Company's notice, subject to any other priority cutback provisions below.
(b) Piggyback Expenses. The Registration Expenses of the Holders of
Registrable Securities in such Piggyback Registration will be paid by the
Company.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities, pro rata in accordance with the amounts of
Registrable Securities requested to be so included by each Requesting
Stockholder, and (iii) third, any other securities requested to be included in
such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the Company
will include in such registration (i) first, the securities requested to be
included therein by the holders requesting such registration, (ii) second, the
Registrable Securities, pro rata in accordance with the amounts of Registrable
Securities requested to be so included by each Requesting Stockholder, and (iii)
third, other securities requested to be included in such registration.
(e) Other Restrictions. The Company hereby agrees that if it has
previously filed a registration statement with respect to Registrable Securities
pursuant to Section 1 or pursuant to this Section 2, and if such previous
registration has not been withdrawn or abandoned, the Company will not file or
cause to be effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act except on Form S-8 or any other similar form
for employee benefit plans, whether on its own behalf or at the request of any
holder or holders of such securities, until a period of at least six months has
elapsed from the effective date of such
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previous registration or, if sooner, until all Registrable Securities included
in such previous registration have been sold.
3. Holdback Agreements.
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(a) Holders of Registrable Securities. The Investors and each other
Holder of Registrable Securities who is or becomes a party to this Agreement,
agrees not to effect any public sale or distribution of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, during the seven days prior to and the 90-day period beginning
on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration except as part of such underwritten
registration or, if sooner, until all Registrable Securities included within
such registration have been sold.
(b) The Company. The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration except as part of such
underwritten registration or pursuant to registrations on Form 5-8 or any other
similar form for employee benefit plans or, if sooner, until all Registrable
Securities included within such registration have been sold, and (ii) to use its
reasonable best efforts to cause each holder of its equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period except as part of such
underwritten registration, if otherwise permitted or, if sooner, until all
Registrable Securities included within such registration have been sold;
provided, however, that the provisions of this Section 3(b) shall continue to
apply with respect to a registration until the provisions of Section 3(a) no
longer apply with respect to such registration.
(c) Registration Procedures. Whenever the Holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to Section 1 or 2 of this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(i) prepare and file with the Commission a registration
statement with respect to such Registrable Securities, which
registration statement will state that the Holders of Registrable
Securities covered thereby may sell such Registrable Securities either
under such registration statement or, at any Holder's proper request,
pursuant to Rule 144 (or any successor rule under the Securities Act),
and use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will
furnish to the counsel selected by (A) Xxxxx, in the event of a Demand
Registration requested pursuant to Section 1 (b)(i), (B) Xxxxxx, in the
event of a Demand Registration requested pursuant to Section l(b)(ii),
or (C) the Holders of sixty and two-thirds percent (66 2/3%) of the
Registrable Securities included in such registration, in the event of
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any other registration, copies of all such documents proposed to be
filed, which documents will be subject to the review of such counsel);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period set forth in Section 4(i) hereof and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify, if applicable,
such Registrable Securities under such other securities or blue sky laws
of such jurisdictions as any seller reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable
to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller
(provided that the Company will not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection, (B) subject itself to
taxation in any such jurisdiction, or (C) consent to general service of
process in any such jurisdiction);
(v) within one business day of its occurrence, notify each
seller of such Registrable Securities, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of
a material fact or omits to state any fact necessary to make the
statements therein not misleading, and, at the request of any such
seller, the Company will promptly prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
(vi) cause all such Registrable Securities to be listed on each
securities exchange or market on which similar securities issued by the
Company are then listed;
(vii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
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(viii) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or
other agent retained by any such seller or underwriter, all financial
and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement;
(ix) cause the Registrable Securities to be registered on such
appropriate registration form or forms of the Commission as shall permit
a delayed or continuous offering of the Registrable Securities pursuant
to Rule 415 under the Securities Act and permit the disposition of the
Registrable Securities in accordance with the method or methods of
disposition requested by the Holders of sixty-six and two-thirds percent
(66 2/3%) of the Registrable Securities included in such registration,
and keep such registration statement effective until the Holders of a
sixty-six and two-thirds percent (66 2/3%) of Registrable Securities
included in such registration have completed the sale and distribution
of the Registrable Securities;
(x) if such registration is an underwritten registration, cause
the Company's officers, directors and holders of in excess of one
percent of the Company's outstanding Common to execute lock-up
agreements, containing customary terms and provisions, required by an
underwriter in any such registered offering restricting such parties
from selling shares of the Company's Common Stock for a period of up to
180 days; and
(xi) furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to Section 1 or 2, if
the method of distribution is by means of an underwriting, on the date
that the shares of Registrable Securities are delivered to the
underwriters for sale pursuant to such registration, or if such
Registrable Securities are not being sold through underwriters, on the
date that the registration statement with respect to such shares of
Registrable Securities becomes effective, (A) a signed opinion, dated
such date, of the independent legal counsel representing the Company for
the purpose of such registration, addressed to the underwriters, if any,
and if such Registrable Securities are not being sold through
underwriters, then to the Holders making such request, as to such
matters as such underwriters or the Holders holding a majority of the
Registrable Securities included in such registration, as the case may
be, may reasonably request; and (B) letters dated such date and the date
the offering is priced from the independent certified public accountants
of the Company, addressed to the underwriters, if any, and if such
Registrable Securities are not being sold through underwriters, then to
the Holders making such request (x) stating that they are independent
certified public accountants within the meaning of the Act and that, in
the opinion of such accountants, the financial statements and other
financial data of the Company included in the Registration Statement or
the prospectus, or any amendment or supplement thereto, comply as to
form in all material respects
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with the applicable accounting requirements of the Act and (y) covering
such other financial matters (including information as to the period
ending not more than five business days prior to the date of such
letters) with respect to the registration in respect of which such
letter is being given as such underwriters or the Holders holding a
majority of the Registrable Securities included in such registration, as
the case may be, may reasonably request and as would be customary in
such a transaction.
4. Registration Expenses. All Registration Expenses incurred in
connection with a registration, qualification or compliance pursuant to this
Agreement shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders, the Requesting Stockholders and any other holders of the
securities so registered pro rata on the basis of the number of their shares so
registered; provided, however, that the Company shall not be required to pay any
Registration Expenses if, as a result of the withdrawal of a request for
registration by a majority of Registrable Securities (other than as a result of
any failure of the Company to comply with the terms of this Agreement, or the
disclosure of any adverse development relating to the Company after the initial
request for registration by any Holder), the registration statement does not
become effective, in which case the Holders and Requesting Stockholders
requesting registration shall bear such Registration Expenses pro rata on the
basis of the number of their shares so included in the registration request,
and, further, that such registration shall not be counted as a Demand
Registration pursuant to Section 1.
5. Indemnification.
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(a) The Company will indemnify each Holder, each Holder's officers,
directors, employees, agents, members and partners, and each Person controlling,
controlled by or under common control with such Holder, with respect to which
registration, qualification or compliance of such Holder's securities has been
effected pursuant to this Agreement, and each underwriter, if any, and each
Person who controls any underwriter, against all claims, losses, damages and
liabilities (or actions in respect thereof), joint or several, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document (including any related registration statement notification or the like)
incident to any such registration, qualification or compliance, or based on 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, or
any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each Holder's officers,
directors, employees, agents, members and partners, and each Person controlling
each such Holder, each such underwriter and each Person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable to a Holder in
any such case to the extent that any such claim, loss, damage, liability or
action arises out of or is based on any untrue statement or omission of material
fact based upon written information furnished to the Company by such Holder or
underwriter and stated to be specifically for use therein.
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(b) Each Holder and Requesting Stockholder will severally not jointly,
if Registrable Securities held by it are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of the Company's directors and officers and each underwriter, if
any, of the Company's securities covered by such registration statement, each
Person who controls the Company or such underwriter within the meaning of the
Securities Act and the rules and regulations thereunder, each other Holder,
Requesting Stockholder or any other holder of securities included in the
offering and each of their respective officers, directors, employees, agents,
members and partners, and each Person controlling such other Holder, Requesting
Stockholder and any other holders of securities included in the offering,
against all claims, losses, damages and liabilities (or actions in respect
thereof), joint or several, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document incident to any such
registration, qualification or compliance, or based on 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, and will reimburse the
Company, its officers and directors, each underwriter, each Person controlling
the Company or such underwriter, each other Holder and Requesting Stockholders,
their officers, directors, employees, agents, members, partners and control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder or Requesting Stockholder and stated to be
specifically for use therein; provided, however, that the obligations of each
such Holder and Requesting Stockholder hereunder shall be limited to an amount
equal to the net proceeds (after deduction of underwriting discounts and selling
commissions, if any) received by each such Holder or Requesting Stockholder of
securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld) and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless such failure
has had a material adverse effect on such claim. The parties to this Agreement
reserve any rights to claim under this Agreement for damages actually incurred
by reason of any failure of the Indemnified Party to give prompt notice of a
claim. To the extent counsel for the Indemnifying Party shall in such counsel's
reasonable judgment, have a conflict in representing an Indemnified Party in
conjunction with the Indemnifying Party or other Indemnified Parties, such
Indemnified Party shall be entitled to separate counsel at the expense of the
Indemnifying Party subject to the approval of such counsel by the Indemnified
Party (whose approval shall not be unreasonably withheld). No Indenmifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or
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enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indenmified Party of a
release from all liability in respect of such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with the defense of such claim and
any litigation resulting therefrom.
6. Restrictive Legend. Each certificate representing (a) the Securities
or (b) any Shares or other securities issued in respect thereof, upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event
shall be stamped or otherwise imprinted with a legend in the following form (in
addition to any legend required under applicable state securities laws and any
other applicable agreement(s)):
"THIS WARRANT/DEBENTURE [AND THE COMMON STOCK ISSUABLE UPON
COVERSION HEREOF] HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), NOR ANY STATE
SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED,
HYPOTHECATED OR OTHERWISE TRANSFERRED UNTIL (1) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE COMPANY
RECEIVES AN OPINION OF COUNSEL TO THE COMPANY OR OTHER COUNSEL
TO THE HOLDER OF SUCH [WARRANT/DEBENTURE AND/OR COMMON STOCK]
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
[WARRANT/DEBENTURE AND/OR COMMON STOCK] MAY BE PLEDGED, SOLD,
ASSIGNED, HYPOTHECATED OR TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS."
7. Information by the Holders and Requesting Stockholders. Each Holder
of Registrable Securities, and each Requesting Stockholder holding securities
included in any registration, shall furnish to the Company such information
regarding such Holder or Requesting Stockholder and the distribution proposed by
such Holder or Requesting Stockholder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
8. Limitations on Registration of Issues of Securities. From and after
the date of this Agreement, the Company shall not enter into any agreement with
any holder or prospective holder of any securities of the Company giving such
holder or prospective holder the right to require the Company to register any
securities of the Company that are more favorable to such holder or prospective
holder than the rights granted under this Agreement.
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9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration, the Company agrees to:
(a) make and keep public information available as those terms are
understood and defined and interpreted in and under Rule 144 under the
Securities Act ("Rule 144"), at all times from and after the date hereof;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and
(c) so long as the Holders own any Restricted Securities, furnish
to the Holders forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 and of the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed as any Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing any Holder to sell any such securities without registration.
10. Participation in Underwritten Registrations. Subject to the right of
any Holder or Holders to withdraw any request for registration, no Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable and customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
11. Selection of Underwriters. If any Demand Registration is an
underwritten offering, (a) Xxxxx, in the event of a Demand Registration
requested pursuant to Section 1 (b)(i), (b) Xxxxxx, in the event of a Demand
Registration requested pursuant to Section 1 (b)(ii), and (c) the Holders of
sixty and two-thirds percent (66 2/3%) of the Registrable Securities included in
such registration, in the event of any other registration shall have the right
to select the investment banking firm to be lead manager of the offering,
subject to the approval of the Company (which approval will not be unreasonably
withheld). If any registration other than a Demand Registration is an
underwritten offering, the Company will have the right to select the investment
banking firm to be lead manager of the offering, subject to the approval of the
Holders of sixty and two-thirds percent (66 2/3%) of the Registrable Securities
included in such registration (which approval will not be unreasonably
withheld).
12. Termination of Registration Rights. The rights of Holders to request
a Demand Registration or participate in a Piggyback Registration shall expire on
March 31 , 2008.
13. Termination of Other Registration Rights Agreements.
(a) The 1998 Holders hereby agree and acknowledge that in
consideration for the registration rights granted hereunder that Article XI (or
any successor or equivalent article or provision) of the 1998 Purchase Agreement
and any other agreement, instrument or
11
understanding that grants or purports to grant registration rights to such
parties are hereby terminated and of no further force or effect.
(b) The holders of the 1998 Warrants hereby agree and acknowledge
that in consideration for the registration rights granted hereunder that Article
XI (or any successor or equivalent article or provision) of the 1998 Purchase
Agreement and any other agreement, instrument or understanding that grants or
purports to grant registration rights to such parties are hereby terminated and
of no further force or effect.
(c) The 1 999 Holders hereby agree and acknowledge that in
consideration for the registration rights granted hereunder that Article XI (or
any successor or equivalent article or provision) of the 1999 Purchase Agreement
and any other agreement, instrument or understanding that grants or purports to
grant registration rights to such parties are hereby terminated and of no
further force or effect.
(d) The holders of the 1999 Warrants hereby agree and acknowledge
that in consideration for the registration rights granted hereunder that Article
XI (or any successor or equivalent article or provision) of the 1 999 Purchase
Agreement and any other agreement, instrument or understanding that grants or
purports to grant registration rights to such parties are hereby terminated and
of no further force or effect.
(e) Xxxxx hereby agrees and acknowledges that in consideration for
the registration rights granted hereunder that any provision or Section in the
Bridge Loan Agreements, the Bridge Loan Warrants and any other agreement,
instrument or understanding that grants or purports to grant registration rights
to Xxxxx are hereby terminated and of no further force or effect.
14. Definitions. As used herein, the following terms have the following
meanings:
"Act" means the Securities Act of 1933, as amended.
"Agreement" means this Registration Rights Agreement.
"Bridge Loan Agreements" means any and all of the separate Bridge Loan
Agreements between the Company, Xxxxx Partners III, L.P. and the other parties
listed on the signature pages thereto entered into between such parties
commencing as of August 12, 1998 through and including December 20, 2002
pursuant to which the Bridge Loan Warrants were issued, including, without
limitation, that certain Bridge Loan Agreement dated as of August 15, 2001 among
the Company, Xxxxx Partners III, L.P., Xxxxx Partners International III L.P.,
Xxxxx Employee Fund III, L.P., those individuals listed on the signature page
thereto, and Xxxxx Partners III, L.P., as agent for the lenders, as amended by
the First Amendment to Bridge Loan Agreement dated as of January 8, 2002, the
Second Amendment to Bridge Loan Agreement dated as of April 5, 2002, and the
Third Amendment to Bridge Loan Agreement dated as of May 8, 2002, as such may be
supplemented, amended or otherwise modified from time to time.
"Common Stock" has the meaning set forth in the recitals.
"Commission" means the Securities and Exchange Commission.
12
"Company" has the meaning set forth in the preamble.
"Demand Registration" has the meaning set forth in Section 1(a) of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holders" means the Investors or any Person to whom an Investor or
transferee(s) of an Investor has assigned, transferred or otherwise conveyed the
Securities or the Shares.
"Indemnified Party" has the meaning set forth in Section 5 hereof.
"Indemnifying Party" has the meaning set forth in Section 5 hereof.
"Investors" has the meaning set forth in the preamble.
"Loan Agreement" has the meaning set forth in the recitals.
"1998 Debentures" has the meaning set forth in the recitals.
"1998 Holder" has the meaning set forth in the recitals.
"1998 Purchase Agreement" has the meaning set forth in the recitals.
"1998 Warrants" has the meaning set forth in the recitals.
"1999 Holder" has the meaning set forth in the recitals.
"1999 Purchase Agreement" has the meaning set forth in the recitals.
"1999 Warrants" has the meaning set forth in the recitals.
"Person" means any individual, corporation, limited liability company,
partnership, association, trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Piggyback Registration" has the meaning set forth in Section 2 of this
Agreement.
"Registrable Securities" means any Shares issued or issuable upon the
exercise or conversion of the Securities (including any Securities that may be
issued as interest with respect to any Security) or in respect of the Shares
issued or issuable upon the exercise or conversion of any Securities upon any
stock split, stock dividend, recapitalization or similar event.
"Registration Expenses" means all expenses incurred by the Company in
compliance with Sections 1 and 2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees, and disbursements of
counsel for the Company and blue sky fees and expenses, reasonable fees and
disbursements for one counsel, as such counsel is selected in accordance with
Section 4(a), and the expense of any special audits incident to or required by
any such registration, exclusive of the Selling Expenses.
13
"Restricted Securities" means the securities of the Company required to
bear or bearing the legend set forth in Section 6 of this Agreement.
"Requesting Stockholders" means holders of securities of the Company
entitled to have securities included in any registration pursuant to Section 2
and who shall request such inclusion.
"Rule 144" has the meaning set forth in Section 9 of this Agreement.
"Securities" has the meaning set forth in the recitals.
"Securities Act" means the Securities Act of 1 933, as amended.
"Selling Expenses" means all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and, except as
otherwise provided in "Registration Expenses", all fees and disbursements of
counsel for any Holder.
"Shares" means the shares of Common Stock which may be issued upon the
exercise of all or a portion of the Securities. The term Shares does not include
any other shares of Common Stock or other capital stock of the Company.
"Shelf Registration" has the meaning set forth in Section 1 of this
Agreement.
"2002 Debentures" has the meaning set forth in the recitals.
"2002 Holder" has the meaning set forth in the recitals.
"2002 Purchase Agreement" has the meaning set forth in the recitals.
"Xxxxxx Warrant" has the meaning set forth in the recitals.
15. Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
16. Amendments and Waivers. The provisions of this Agreement may be
amended or waived only upon the prior written consent of the Company and the
Holders of sixty and two-thirds percent (66 2/3%) of the Registrable Securities,
provided that the prior written consent of all of the Holders will be required
to amend Section 1 and 2 hereof.
17. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any Investor or Holder upon any breach or default of
the Company under this Agreement shall impair any such right, power or remedy of
such Holder or Investor nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence, therein, or of or in
14
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any Investor or Holder of .any
provisions or conditions of this Agreement must be, made in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
18. Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of the
Holders of Registrable Securities are also for the benefit of, and enforceable
by, any subsequent holder of Registrable Securities. The registration rights
provided in this Agreement may be transferred without restriction and shall
inure to and be enforceable by any and all Holders of Registrable Securities,
including, without limitation, any successors, assigns, transferees, heirs,
executors and administrators of the Investors.
19. Severability. Unless otherwise expressly provided herein, each
Investor's or Holders rights and obligations hereunder are several rights and
obligations, not rights and obligations jointly held with any other person. In
case any provision of this Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
20. Counterparts; Facsimile Transmission. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement. Each party to this Agreement agrees
that it will be bound by its own facsimilied signature and that it accepts the
facsimilied signature of each other party to this Agreement.
21. Descriptive Headings. The titles of the articles, sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
22. Governing Law. This Agreement and the rights of the parties
hereunder shall be governed in all respects by the laws of the State of New York
wherein the terms of this Agreement were negotiated, excluding to the greatest
extent permitted by law any rule of law that would cause the application of the
laws of any jurisdiction other than the State of New York.
23. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or 48 hours after deposited in the United States mail, certified or
registered to the recipient by postage prepaid or by facsimile. Such notices,
demands and other communications shall be sent to the Investors and to any
Holder at the addresses indicated on the Schedule of Investors attached hereto
and to the Company at the address of its
15
corporate headquarters or to such other address or to the attention of such
other Person as the recipient party has specified by prior written notice to the
sending party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY
XXXXXX DRUG CO., INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: CEO
XXXXXX
XXXXXX PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------
Name: Xxxxxxx Xxxxx
Title: Sr. X.X., XXX
00
0000 XXXXXXXXXXXXXXXX
---------------------
XXXXX PARTNERS III, L.P. GALEN PARTNERS INTERNATIONAL, III,
By: Claudius, L.L.C., General Partner L.P.
000 Xxxxx Xxxxxx, 0xx Xx. By: Claudius, L.L.C., General Partner
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx Xxxxxxxxxxx /s/ Xxxxx Xxxxxxxxxxx
------------------------------ ------------------------------------
By: Xxxxx Xxxxxxxxxxx By: Xxxxx Xxxxxxxxxxx
Its: General Partner Its: General Partner
XXXXX EMPLOYEE FUND III, L.P. ESSEX WOODLANDS HEALTH
By: Wesson Enterprises, Inc. VENTURES FUND V
000 Xxxxx Xxxxxx, 0xx Xx. 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxx /s/Xxxxxxxx Thangara
------------------------------ ------------------------------------
By: Xxxxx X. Xxxxxx By: Xxxxxxxx Xxxxxxxxx
Its: General Partner Its: Managing Director
CARE CAPITAL LLC XXXXXXX XXXX
00 Xxxxxxx Xxxxxx, Xxxxx 000 c/o Xxxxxx Xxxx
Xxxxxxxxx, XX 00000 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx Xxxx
------------------------------ ------------------------------------
By: Xxxxx X. Xxxxxx
Its: Partner
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------ ------------------------------------
XXXXXX X. XXXX XXXXXX X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
------------------------------ ------------------------------------
XXXX XXXX XXXXX XXXXXX
c/o D.R. International c/o Xxx Xxxxxxxx
0000 Xx. Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxx 000
Xxxxxxxx, XX 00000
/s/ Xxxx Xxxx /s/ Xxxxx Xxxxxx
------------------------------ ------------------------------------
XXXXXX X. XXXXXXXX
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
1998 HOLDERS
------------
XXXXX PARTNERS III, L.P.
By: Claudius, L.L.C., General Partner
000 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx Xxxxxxxxxxx
------------------------------
By: Xxxxx Xxxxxxxxxxx
Its: General Partner
XXXXX EMPLOYEE FUND III, L.P. GALEN PARTNERS INTERNATIONAL, III,
By: Wesson Enterprises, Inc. L.P.
000 Xxxxx Xxxxxx, 0xx Xx. By: Claudius, L.L.C., General Partner
Xxx Xxxx, XX 00000 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxxxxx
------------------------------ -----------------------------------
By: Xxxxx X. Xxxxxx By: Xxxxx Xxxxxxxxxxx
Its: General Partner Its: General Partner
XXXX XXXXX XXXXXXX XXXXX
00 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000 Xxxxxxxx, XX 00000
/s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxxx
------------------------------ ----------------------------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------ ----------------------------------
XXXX XXXX XXXXXX XXXXX
c/o D.R. International 000 Xxxxxx Xxxx
0000 Xx. Xxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxx Xxxx /s/ Xxxxxx Xxxxx
------------------------------ ----------------------------------
XXXXXX X. XXXX AS CUSTODIAN XXXXXX X. XXXX AS CUSTODIAN
FOR SANCHIN X. XXXX FOR XXXXXX X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
------------------------------ ----------------------------------
By: Varshah X. Xxxx By: Varshah H. Shak
Its: Custodian Its: Custodian
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
c/o Xxxxx Xxxxxxxx c/o Xxxxx Xxxxxxxx
000 Xxxxx Xxxxx 000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------ ----------------------------------
XXXXXXX XXXXXX, XXX ACCOUNT XXXXXXX XXXXXX
FBO XXXXXXX XXXXXX 0000 Xxxxxxxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxx, Xxx. 00000
Xxxxxxxx Xxxx, Xxx. 00000
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
------------------------------ ----------------------------------
By: __________________________
Its: Trustee
XXXXXXX X. XXXXXXX XXXX X. XXXXXXX
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, Ill. 61107 Xxxxxxxx, Xxx. 00000
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
------------------------------ ----------------------------------
BROOKE XXXXX XXXXXXX ALEC XXXX XXXXXXX
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, Ill. 61107 Xxxxxxxx, Xxx. 00000
/s/ Brooke Xxxxx Xxxxxx /s/ Alec Xxxx Xxxxxxx
------------------------------ ----------------------------------
XXXXXXXX XXXXX XXXXXXX XXXXX XXXXXXX
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, Ill. 61107 Xxxxxxxx, Xxx. 00000
/s/ Xxxxxxxx Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
------------------------------ ----------------------------------
XXXXXXX X. XXXXXXX XX XXXX XXXXX XXXXXXX
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, Ill. 61107 Xxxxxxxx, Xxx. 00000
/s/ Xxxxxxx X. Xxxxxxx XX /s/ Xxxx Xxxxx Xxxxxxx
------------------------------ ----------------------------------
1999 HOLDERS
------------
ORACLE STRATEGIC PARTNERS, L.P. GALEN PARTNERS III, L.P.
By: Oracle Strategic Capital L.L.C., By: Claudius, L.L.C., General Partner
General Partner 000 Xxxxx Xxxxxx, 0xx Xx.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxxxxx
------------------------------ ----------------------------------
By: Xxxx Xxxxxxxx By: Xxxxx Xxxxxxxxxxx
Its: Authorized Agent Its: General Partner
XXXXX EMPLOYEE FUND III, L.P. GALEN PARTNERS III, L.P.
By: Wesson Enterprises, Inc. By: Claudius, L.L.C., General Partner
000 Xxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxxxxx
------------------------------ ----------------------------------
By: Xxxxx X. Xxxxxx By: Xxxxx Xxxxxxxxxxx
Its: General Partner Its: General Partner
XXXX XXXXX XXXXXXX XXXXX
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000 Xxxxxxxx, XX 00000
/s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxxx
------------------------------ ----------------------------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------ ----------------------------------
XXXX XXXX XXXXXX XXXXX
c/o D.R. International 000 Xxxxxx Xxxx
0000 Xx. Xxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxx Xxxx /s/ Xxxxxx Xxxxx
------------------------------ ----------------------------------
XXXXXXX XXXX
c/o Xxxxxx Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxxxx Xxxx
------------------------------
HOLDERS OF RECAP SHARES
-----------------------
ORACLE STRATEGIC PARTNERS, L.P. XXXXXX XXXX
By: Oracle Strategic Capital L.L.C., 0000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxx /s/ Xxxxxx Xxxx
------------------------------ --------------------------------
By: Xxxx Xxxxxxxx
Its: Authorized Agent
XXXXXXX XXXX XXXXX XXXXXXX
c/o Xxxxxx Xxxx c/x Xxxxxx Drug Co., Inc.
000 Xxxx Xxxxxx 000 Xxxxx Xxxxxxxxxx Xx.
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx Xxxxxxxx #0
Xxxxxxxx, Xxx. 00000
/s/ Xxxxxxx Xxxx /s/ Xxxxx Xxxxxxx
------------------------------ --------------------------------
XXXX XXXXX XXXXXXX XXXXX
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000 Xxxxxxxx, XX 00000
/s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxxx
------------------------------ --------------------------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------ --------------------------------
XXXX XXXX XXXXXX XXXXX
c/o D.R. International 000 Xxxxxx Xxxx
0000 Xx. Xxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxx Xxxx /s/ Xxxxxx Xxxxx
------------------------------ --------------------------------
XXXXXX X. XXXXX & CO., INC., TTEE E XXXXXX X. XXXXX & CO., INC., TTEE
FBO Xxxxxx Xxxxxxx XXX FBO Xxxxxxx X. Xxxxxxx XXX
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2
Rockford, Ill. 61107
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
------------------------------ ----------------------------------
By: Xxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx
Its: Trustee Its: Trustee
XXXXXX XXXXXXX TRUST XXXXXXX XXXXXXX TRUST
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, Ill. 61107 Xxxxxxxx, Xxx. 00000
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
------------------------------ ----------------------------------
By: Xxxxxx Xxxxxxx By: Xxxxxxx Xxxxxxx
Its: Trustee Its: Trustee
XXXXX XXXXXXX XXXXXXXXX XXXXXXXXX
c/x Xxxxxx Drug Co., Inc. 00000 Xxxx, Xxxxx 00
000 Xxxxx Xxxxxxxxxx Xx. Xx. Xxxxxxxx, Xxxx 00000
Xxxxxxx Xxxxxxxx #0
Xxxxxxxx, Xxx. 00000
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------ ----------------------------------
XXXXXX X. XXXX XXXXXX X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
------------------------------ ----------------------------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
c/o Xxxxx Xxxxxxxx c/o Xxxxx Xxxxxxxx
000 Xxxxx Xxxxx 000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------ ----------------------------------
XXXXX
-----
XXXXX PARTNERS III, L.P.
By: Claudius, L.L.C., General Partner
000 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx Xxxxxxxxxxx
-------------------------------------
By: Xxxxx Xxxxxxxxxxx
Its: General Partner
XXXXX EMPLOYEE FUND III, L.P. GALEN PARTNERS INTERNATIONAL, III,
By: Wesson Enterprises, Inc. L.P.
000 Xxxxx Xxxxxx, 0xx Xx. By: Claudius, L.L.C., General Partner
Xxx Xxxx, XX 00000 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxxxxx
------------------------------ ------------------------------------
By: Xxxxx X. Xxxxxx By: Xxxxx Xxxxxxxxxxx
Its: General Partner Its: General Partner
Schedule l
----------
Schedule of Investors
---------------------
Xxxxxx:
-------
Xxxxxx Pharmaceuticals, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Tel: 909-270-1400 ext. 4150
Fax: 000-000-0000
2002 Holders
------------
XXXXX PARTNERS III, L.P. GALEN PARTNERS INTERNATIONAL, III,L.P.
By: Claudius, L.L.C., General Partner By: Claudius, L.L.C., General Partner
000 Xxxxx Xxxxxx, 0xx Xx. 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------- -------------
Fax: 000-000-0000 Fax: 000-000-0000
------------- -------------
XXXXX EMPLOYEE FUND III, L.P. ESSEX WOODLANDS HEALTH VENTURES V, By: Wesson Enterprises, Inc. L.P.
000 Xxxxx Xxxxxx, 0xx Xxxxx By: Essex Xxxxxxxxx Xxxxxx Xxxxxxxx X, X.X.X.,
Xxx Xxxx, Xxx Xxxx 00000 Its General Partner
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------- -------------
Fax: 000-000-0000 Fax: 000-000-0000
------------- -------------
CARE CAPITAL INVESTMENTS II, LP XXXXXXX XXXX
By: Care Capital II, LLC, as general c/o Xxxxxx Xxxx
partner 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------- -------------
Fax: 000-000-0000 Fax: 000-000-0000
------------- -------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------- -------------
Fax: 000-000-0000 Fax: 000-000-0000
------------- -------------
XXXXXX X. XXXX XXXXXX X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------- -------------
Fax: 000-000-0000 Fax: 000-000-0000
------------- -------------
XXXX XXXX XXXXXX X. XXXXXXXX
0000 Xxxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Tel: 000-000-0000 Tel:__________________
-------------
Fax: 000-000-0000 Fax: __________________
-------------
XXXXX XXXXXX
c/o Xxx Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Tel: 000-000-0000
-------------
Fax: 000-000-0000
-------------
1998 HOLDERS
------------
XXXXX PARTNERS III, L.P.
By: Claudius, L.L.C.. General Partner
000 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000
-------------
Fax: 000-000-0000
-------------
XXXXX EMPLOYEE FUND III L.P. GALEN PARTNERS INTERNATIONAL, By: Wesson Enterprises, Inc.
III,L.P.
000 Xxxxx Xxxxxx, 0xx Xxxxx By: Claudius, L.L.C., General Partner
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx, 0'x Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXX XXXXX XXXXXXX XXXXX
00 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000 Xxxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXX XXXX XXXXXX XXXXX
0000 Xxxx Xxxxxxxx Xxxxxx 000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXX XXXXXX X. XXXXX &C CO., INC. TTEE
c/o Xxxxxx Xxxx FBO Xxxxxxx X. Xxxxxxx XXX
000 Xxxx Xxxxxx c/x Xxxxxx Drug Co., Inc.
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxxxxxx Xx.
Xxxxxxx Xxxxxxxx #0
Xxxxxxxx, Xxx. 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXXXXX XXXXX XXXXXXX
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, Ill. 61107 Xxxxxxxx, Xxx. 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXX XXXXXXX TRUST XXXXXXXXX XXXXXXXXX
c/x Xxxxxx Drug Co., Inc. 00000 Xxxx, Xxxxx 00
000 Xxxxx Xxxxxxxxxx Xx. Xx. Xxxxxxxx, Xxxx 00000
Xxxxxxx Xxxxxxxx #0
Xxxxxxxx, XXX. 00000 Tel: 000-000-0000
------------
Fax: 000-000-0000
------------
Tel: 000-000-0000
------------
Fax: 000-000-0000
------------
XXXXXX X. XXXX XXXXXX X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXX X. XXXX AS CUSTODIAN XXXXXX X. XXXX AS CUSTODIAN
FOR XXXXXX X. XXXX FOR SAMEEET X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
1999 HOLDERS
------------
ORACLE STRATEGIC PARTNERS, L.P. GALEN PARTNERS III, L.P.
By: Oracle Strategic Capital L.L.C., By: Claudius, L.L.C.. General Partner
General Partner 000 Xxxxx Xxxxxx, 0xx Xx.
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
3rd Floor
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXX EMPLOYEE FUND III L.P. GALEN PARTNERS INTERNATIONAL, By: Wesson Enterprises, Inc.
III, L.P.
000 Xxxxx Xxxxxx, 0xx Xxxxx By: Claudius, L.L.C., General Partner
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx, 0'x Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXX XXXXX XXXXXXX XXXXX
00 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000 Xxxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXX XXXX XXXXXX XXXXX
0000 Xxxx Xxxxxxxx Xxxxxx 000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXX
c/o Xxxxxx Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000
------------
Fax: 000-000-0000
------------
HOLDERS OF RECAP SHARES
-----------------------
ORACLE STRATEGIC PARTNERS, L.P. XXXXXX XXXX
By: Oracle Strategic Capital L.L.C., 0000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXX XXXXX XXXXXXX
c/o Xxxxxx Xxxx c/x Xxxxxx Drug Co., Inc.
000 Xxxx Xxxxxx 000 Xxxxx Xxxxxxxxx Xx.
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx Xxxxxxxx #0
Xxxxxxx Xxxxxxxx #0
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXX XXXXX XXXXXXX XXXXX
00 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000 Xxxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXX XXXX XXXXXX XXXXX
0000 Xxxx Xxxxxxxx Xxxxxx 000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXX X. XXXXX & CO., INC., TTEE XXXXXX X. XXXXX & CO., INC., TTEE
FBO Xxxxxx Xxxxxxx XXX FBO Xxxxxxx X. Xxxxxxx XXX
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, IL 61107 Xxxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXX XXXXXXX TRUST XXXXXXX XXXXXXX TRUST
c/x Xxxxxx Drug Co., Inc. c/x Xxxxxx Drug Co., Inc.
000 Xxxxx Xxxxxxxxxx Xx. 000 Xxxxx Xxxxxxxxxx Xx.
Crimson Building #2 Crimson Building #2
Rockford, Ill. 61107 Xxxxxxxx, Xxx. 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXXXX XXXXXXXXX XXXXXXXXX
0000 Xxxxxxxxxx Xxxxxx 17759 Road, Xxxxx 00
Xxxxxxxx Xxxx, XX 00000 Ft. Xxxxxxxx, Xxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXX X. XXXX XXXXXX X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXX X. XXXX AS CUSTODIAN XXXXXX X. XXXX AS CUSTODIAN
FOR XXXXXX X. XXXX FOR SAMEEET X. XXXX
00 Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXXXX XXXXXXXX XXXXX XXXXXXXX
c/o Xxxxx Xxxxxxxx c/o Xxxxx Xxxxxxxx
00 Xxxxxxxxxxxxx Xxxx 00 Xxxxxxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000 Xxxxxxx, Xxx Xxxxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------ ------------
Fax: 000-000-0000 Fax: 000-000-0000
------------ ------------
XXXXX
-----
XXXXX PARTNERS III, L.P. GALEN PARTNERS INTERNATIONAL, III,L.P.
By: Claudius, L.L.C., General Partner By: Claudius, L.L.C., General Partner
000 Xxxxx Xxxxxx, 0xx Xx. 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000 Tel: 000-000-0000
------------- -------------
Fax: 000-000-0000 Fax: 000-000-0000
------------- -------------
XXXXX EMPLOYEE FUND III, L.P.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000
-------------
Fax: 000-000-0000
-------------
Schedule 2
----------
Bridge Loan Warrants
--------------------
See attached.
Xxxxx Partners Xxxxx
Warrant Exercise Xxxxx Partners III, International III, Employees
Date of Warrant Price L.P. L.P. Fund III, L.P.
August 12, 1998 $ 2.2100 47,646 4,61 1 209
September 17, 1998 $ 1.8900 23,824 2,305 104
October 2, 1998 $ 1.7300 23,824 2,305 104
October 19, 1998 $ 1.5000 7,147 692 31
October 19, 1998 $ 1.4700 35,735 3,459 156
November 6,1998 $ 1.4700 71,471 6,917 311
December 2,1998 $ 1.3000 654,098 59,208 2,679
March 8, 1999 $ 1.1400 64,120 5,804 262
May 3, 1999 $ 1.1200 11,863 1,073 49
January 7, 2000 $ 1.4000 23,965 2,169 99
January 2l, 2000 $ 1.4300 47,931 4,339 196
February l9, 2000 $ 1.1300 23,965 2,169 99
March 4, 2000 $ 1.5500 23,965 2,169 99
August l5, 2001 $ 3.0120 140,459 12,715 576
January 9, 2002 $ 1.8370 146,157 13,230 598
January 9, 2002 $ 1.8370 66,805 6,047 273
February l, 2002 $ 1.8700 68,518 6,202 280
March l, 2002 $ 2.0870 68,518 6,202 280
April 1, 2002 $ 2.0100 45,678 4,135 187
May 8, 2002 $ 2.1600 1,635,580 148,044 6,696
May 8, 2002 $ 2.1600 548,142 49,614 2,244
May 8, 2002 $ 2.1600 241,586 21,867 989
June 3, 2002 $ 1.9000 215,194 19,478 881
Ju1y 23, 2002 $ 1.7200 186,772 16,905 765
July 23, 2002 $ 1.4500 82,220 7,442 337
August 5, 2002 $ 1.4200 151,245 13,690 619
September 3, 2002 $ 1.5100 121,808 11,025 499
October l, 2002 $ 1.7545 93,386 8,453 382
November 4, 2002 $ 1.7565 11,775 1,066 48
November 12, 2002 $ 1.7730 10,151 919 42
November 2l, 2002 $ 1.5770 24,971 2,260 102
December 5, 2002 $ 1.2770
-------------------------------------------------------------------
13,704 1,240 56
-------------------------------------------------------------------
4,932,223 447,754 20,252
========= ======= ======
---------------------------------------------------------- -----------------------------------------------------------
