Final
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
dated as of May 7, 2003
among
IMPAX LABORATORIES, INC.
and
THE INVESTORS NAMED HEREIN
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of May 7,
2003 by and among IMPAX LABORATORIES, INC., a Delaware corporation (the
"Company") and the investors named on the signature pages hereto (each such
investor, a "Purchaser" and all such investors, collectively, the "Purchasers").
Recitals
WHEREAS, the Company and the Purchasers have entered into one or more
common stock and warrant purchase agreements (collectively, the "Stock Purchase
Agreement") pursuant to which the Purchasers have purchased shares of the common
stock, par value $.01 per share of the Company and warrants to purchase common
stock of the Company; and
WHEREAS, as an inducement to the Purchasers to enter into the Stock
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement;
Agreement
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, covenants and agreements of the parties hereto, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
SECTION 1.
DEFINITIONS
1.1 Defined Terms. In addition to the terms defined elsewhere in this
Agreement, (a) capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Stock Purchase Agreement, and (b) the
following terms shall have the following meanings:
"Agreement" has the meaning set forth in the preamble hereto.
"Company" has the meaning set forth in the preamble and shall include
the Company's successors by merger, acquisition, reorganization or otherwise.
"Holder", "Holders", "holder" or "holders" means any holder or holders
of Registrable Securities who is a party hereto or who otherwise agrees in
writing to be bound by the provisions of this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
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"Prospectus" means the prospectus included in any Registration
Statement, all amendments and supplements to such prospectus and all material
incorporated by reference in such prospectus.
"Registrable Securities" means (i) the shares of Common Stock of the
Company issued or issuable to the Purchasers pursuant to the Stock Purchase
Agreement, including the additional shares of Common Stock issuable pursuant to
Section 2.2 and Section 6.7 of the Stock Purchase Agreement, (ii) the shares of
Common Stock of the Company issued upon the exercise of the Warrants, (iii) the
Warrants and (iv) any securities that may be issued or distributed or be
issuable in respect thereof by way of stock dividend, stock split or other
distribution, merger, consolidation, exchange offer, recapitalization or
reclassification or similar transaction or exercise or conversion of any of the
foregoing; provided, however, that any of the foregoing securities shall cease
to be "Registrable Securities" to the extent (i) a Registration Statement with
respect to their sale has been declared effective under the Securities Act and
they have been disposed of pursuant to such Registration Statement, (ii) they
have been distributed pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act, (iii) they shall have been otherwise
transferred and (A) new certificates for them not bearing a legend restricting
transfer under the Securities Act shall have been delivered by the Company and
(B) such securities may be publicly resold (without volume or method of sale
restrictions) without registration under the Securities Act, or (iv) such
securities may be publicly resold (without volume or method of sale
restrictions) without registration under the Securities Act pursuant to Rule
144(k) under the Securities Act (or any successor rule or regulation) (and with
respect to Common Stock issuable upon exercise of the Warrants, assuming that
such shares were acquired in a cashless exercise under the Warrant). For
purposes of this Agreement, a "percentage" (or a "majority") of the Registrable
Securities (or, where applicable, of any other securities) shall be determined
(x) based on the number of shares of such securities (and in the case of
Warrants, the number of shares of Common Stock for which such Warrants may be
exercised) in the case of Registrable Securities which are equity securities,
and (y) based on the principal amount of such securities, in the case of
Registrable Securities which are debt securities.
"registration" means a registration of the Company's securities for
sale to the public under a Registration Statement.
"Registration Statement" means any registration statement of the
Company filed with, or to be filed with, the Commission under the rules and
regulations promulgated under the Securities Act, 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.
"Required Effectiveness Date" means, with respect to the initial Shelf
Registration Statement required to be filed hereunder, August 7, 2003, and, with
respect to any additional Registration Statements that may be required pursuant
to Section 2.3(c), the 90th day following the date on which the Company first
knows, or reasonably should have known, that such additional Registration
Statement is required under such Section.
"Shelf Registration" means a registration effected pursuant to Section
2.1.
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"Shelf Registration Statement" means a Registration Statement of the
Company filed with the Commission on Form S-3 (or any successor form or other
appropriate form under the Securities Act including, if a Form S-3 is not
available for use, Form S-1) for an offering to be made on a continuous or
delayed basis pursuant to Rule 415 under the Act (or any similar rule that may
be adopted by the Commission) covering the Registrable Securities..
"Special Counsel" means one special counsel to the Holders. Unless the
Holders notify the Company otherwise, the Special Counsel will be Proskauer Rose
LLP.
"Underwritten Offering" means a registration in which securities of the
Company are sold to an underwriter or underwriters on a firm commitment basis
for reoffering to the public.
1.2 General Interpretive Principles. Whenever used in this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
any noun or pronoun shall be deemed to include the plural as well as the
singular and to cover all genders. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
be construed to affect the meaning, construction or effect hereof. Unless
otherwise specified, the terms "hereof," "herein," "hereunder" and similar terms
refer to this Agreement as a whole (including the schedules hereto), and
references herein to Sections refer to Sections of this Agreement.
SECTION 2.
REGISTRATION RIGHTS
2.1 Shelf Registration.
(a) Filing. Subject to Section 2.1(e), the Company shall file with
the Commission on or before June 9, 2003 (the "Filing Date") a Shelf
Registration Statement, containing the "Plan of Distribution" attached hereto as
Exhibit A, relating to (i) the offer and sale of the Registrable Securities by
the holders thereof from time to time in accordance with the methods of
distribution elected by such holders and (ii) to the extent permitted by the
Commission, the issuance of the shares underlying the Warrants upon exercise of
the Warrants by Persons that received the Warrants upon transfer thereof (and
not upon the initial issuance thereof) pursuant to the terms thereof, and the
Company shall use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective under the Securities Act, as promptly as
possible after the filing thereof, but in any event prior to the Required
Effectiveness Date, and shall use its reasonable best efforts to keep such
Registration Statement continuously effective under the Securities Act until the
earlier of (i) the fifth anniversary of the Effective Date, (ii) the date each
Purchaser can sell all of its Securities without restriction pursuant to Rule
144(k) or (iii) the date when all Registrable Securities covered by such
Registration Statement have been sold (the "Effectiveness Period"). If agreeable
to Teva Pharmaceuticals Curacao N.V. ("Teva"), the Company may amend the S-3
Registration Statement that it has filed on behalf of Teva to include the
Registrable Securities. The Company shall notify the Special Counsel in writing
promptly (and in any event within one business day) after receiving notification
from the Commission that a Registration Statement has been declared effective.
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(b) Upon the 30th day after the occurrence of any Event (as defined
below) and on every monthly anniversary thereof until the applicable Event is
cured, as partial relief for the damages suffered therefrom by the Purchasers
(which remedy shall not be exclusive of any other remedies available at law or
in equity), the Company shall pay to each Purchaser for each such Event an
amount in cash for each 30-day period in which such Event exists and is uncured,
as liquidated damages and not as a penalty, equal to 1% of the aggregate
purchase price paid under the Purchase Agreement for the Registrable Securities
held by such Purchaser for the first month and 1.5% for each month thereafter.
The payments to which a Purchaser shall be entitled pursuant to this Section
2.1(b) are referred to herein as "Event Payments". Any Event Payments payable
pursuant to the terms hereof shall be prorated for partial months. In the event
the Company fails to make Event Payments in a timely manner, such Event Payments
shall bear interest at the rate of 1.5% per month (prorated for partial months)
until paid in full. For such purposes, each of the following shall constitute an
"Event":
(i) a Registration Statement is not filed on or prior to the
applicable Filing Date or is not declared effective on or prior to
the applicable Required Effectiveness Date; provided, however, that
for the purposes of the Event Payment under this Section 2.1(b)
only, the Company shall have an additional 30 days to cure the
failure to declare the Registration Statement effective on or prior
to the Required Effectiveness Date before such Event Payment is due
to the Purchasers under this Section 2.1(b);
(ii) after the Effective Date for a Registration Statement, the
right of the Purchasers to sell Registrable Securities under such
Registration Statement (or a subsequent Registration Statement
filed in replacement thereof) is suspended for any Trading Day in
excess of five Trading Days (whether or not consecutive Trading
Days) within a period of 24 consecutive months for any reason other
than (A) as permitted by Section 2.1(e) or (B) as a result of any
act of war, terrorism or natural disaster;
(iii) the Common Stock is not listed or quoted, or is suspended
from trading, on an Eligible Market for any Trading Day in excess
of five Trading Days (whether or not consecutive Trading Days)
within a period of 24 consecutive months other than as a result of
(A) any market-wide suspension of trading, (B) act of war,
terrorism or natural disaster or (C) any circumstance beyond the
control of the Company;
(iv) the Company fails for any reason to deliver a certificate
evidencing any Securities to a Purchaser within five Trading Days
after delivery of such certificate is required pursuant to any
Transaction Document for any reason other than as a result of (A)
act of war, terrorism or natural disaster or (B) any circumstance
beyond the control of the Company, or the exercise rights of the
Purchasers under the Warrant are otherwise suspended for any reason
other than (A) as permitted under the Warrant and (B) as result of
any circumstance beyond the control of the Company; or
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(v) the Company fails to have available a sufficient number of
authorized but unissued and otherwise unreserved shares of Common
Stock available to issue Underlying Shares upon any exercise of the
Warrants (without giving effect to any adjustment of the Warrants
pursuant to Section 2(d) of the Warrants).
For the purpose of this Section 2.1(b): (A) each Event shall be independent of
each other Event and shall constitute separate Event Payments; (B) no Event
Payments shall be payable under clause (i) or (ii) above with respect to any
Registrable Securities of a Purchaser to the extent that such Registrable
Securities could then be sold pursuant to Rule 144(k); (B) if any Event relates
to less than all of the Purchasers, the Event Payments shall be payable only
with respect to the affected Purchasers; and (C) if any Event relates to less
than all of the Registrable Securities, the Event Payments shall be payable only
with respect to the affected Registrable Securities. Upon request of the
Company, each Purchaser shall provide the Company with a written certification
of the number and kind of Registrable Securities then held by it to permit
calculations of Event Payments payable hereunder.
(c) If any Event occurs and remains uncured for 90 days, then at
any time or times thereafter any Purchaser may deliver to the Company a notice
(a "Repurchase Notice") requiring the Company to repurchase all or any portion
of the Shares and any Underlying Shares then held by such Purchaser at a price
per share equal to 115% of the average of the Closing Prices for the five
Trading Days preceding either (a) the date of delivery of the notice requiring
such repurchase, or (b) the date on which the applicable repurchase price
(together with any other payments, expenses and liquidated damages then due and
payable under the Transaction Documents) is paid in full, whichever is greater.
If a Purchaser delivers a Repurchase Notice pursuant to this Section, the
Company shall pay the aggregate repurchase price (together with any other
payments, expenses and liquidated damages then due and payable pursuant to the
Transaction Documents) to such Purchaser no later than the fifth Trading Day
following the date of delivery of the Repurchase Notice, and upon receipt
thereof such Purchaser shall deliver original certificates evidencing the
Securities so repurchased to the Company (to the extent such certificates have
been delivered to such Purchaser).
(d) Continued Effectiveness. Subject to Section 2.1(e), the Company
shall use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming a part thereof
to be usable by the holders during the term of this Agreement. The Company shall
not be deemed to have used its reasonable best efforts to keep the Shelf
Registration Statement effective if the Company voluntarily takes any action or
omits to take any action that would result in the inability of any holder of
Registrable Securities covered by such Registration Statement to be able to
offer and sell any such Registrable Securities during the term of this
Agreement, unless such action or omission is required by applicable law or
otherwise permitted hereunder.
(e) Suspension of Registration. Notwithstanding anything in this
Agreement to the contrary, after 60 consecutive Trading Days of continuous
effectiveness of the initial Shelf Registration Statement filed and declared
effective pursuant to this Agreement, the Company may, by written notice to the
Purchasers, suspend sales under a Registration Statement after the Effective
Date thereof and/or require that the Purchasers immediately cease the sale of
shares of Common Stock pursuant thereto and/or defer the filing of any
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subsequent Registration Statement if (i) the Company is engaged in a material
merger, acquisition, financing or sale or other strategic transaction, or the
negotiations therefor, or (ii) the Company is in possession of material,
non-public information, the disclosure of which would be required to be made in
any Registration Statement so that such Registration Statement would not be
materially misleading and would not otherwise be required to be made at such
time but for the filing of such Registration Statement and, in each case, the
Board of Directors determines in good faith, by appropriate resolutions, that,
as a result of such activity, (A) it would be materially detrimental to the
Company (other than as relating solely to the price of the Common Stock) to file
a Registration Statement at such time and (B) it is in the best interests of the
Company to defer proceeding or continuing with such registration at such time.
Upon receipt of such notice, each Purchaser shall immediately discontinue any
sales of Registrable Securities pursuant to such registration until such
Purchaser has received copies of a supplemented or amended Prospectus or until
such Purchaser is advised in writing by the Company that the then-current
Prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such
Prospectus. In no event, however, shall this right be exercised to suspend sales
beyond the period during which (in the good faith determination of the Company's
Board of Directors) the failure to require such suspension would be materially
detrimental to the Company. The Company's rights under this Section 2(e) may be
exercised no more than two (2) times in any twelve-month period, of which no
more than 15 days may be consecutive. Immediately after the end of any
suspension period under this Section 2(e), the Company shall take all necessary
actions (including filing any required supplemental prospectus) to restore the
effectiveness of the applicable Registration Statement and the ability of the
Purchasers to publicly resell their Registrable Securities pursuant to such
effective Registration Statement. The Company represents that, as of the date of
this Agreement, it has no knowledge of any circumstance that would reasonably be
expected to cause the Company to exercise its rights under this Section 2.1(d).
(f) Underwritten Offering. If the Purchasers of not less than a
majority of the Registrable Securities included in any offering pursuant to the
Shelf Registration Statement so elect, such offering shall be in the form of an
Underwritten Offering and the Company, if necessary, shall amend or supplement
the Shelf Registration Statement for such purpose. The Purchasers of a majority
of the Registrable Securities included in such Underwritten Offering shall,
after consulting with the Company, have the right to select the managing
underwriter or underwriters for the offering.
2.2 [intentionally omitted].
2.3 Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall:
(a) Not less than three Trading Days prior to the filing of each
Registration Statement or any related Prospectus or any amendment or supplement
thereto, the Company shall (i) furnish to the Principal Purchasers and the
Special Counsel copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such Principal Purchasers and the
Special Counsel, and (ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such inquiries as shall
be necessary, in the reasonable opinion of the Special Counsel, to conduct a
reasonable investigation within the meaning of the Securities Act. The Company
shall not file the Registration Statement or any such Prospectus or any
amendments or supplements thereto to which the Purchasers of a majority of the
Registrable Securities and the Special Counsel shall reasonably object.
Notwithstanding the foregoing, the Company may file any document if it has not
received any reasonable objections thereto prior to the close of business on the
third Trading Day after providing a copy as provided pursuant to the first
sentence of this paragraph.
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(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission
such additional Registration Statements in order to register for resale under
the Securities Act all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424; (iii)
respond as promptly as reasonably possible, and in any event within 10 Trading
Days, to any comments received from the Commission with respect to the
Registration Statement or any amendment thereto and as promptly as reasonably
possible provide the Purchasers true and complete copies of all correspondence
from and to the Commission relating to the Registration Statement; and (iv)
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement during the applicable period in accordance
with the intended methods of disposition by the Purchasers thereof set forth in
the Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) If, on any date, the number of shares of Common Stock
previously registered under all existing Registration Statements is less than
the Actual Minimum on such date, then the Company shall file an additional
Registration Statement covering a number of shares of Common Stock at least
equal to the Actual Minimum on such date; provided that the Company will not be
required at any time to register a number of shares of Common Stock greater than
the maximum number of shares of Common Stock that could possibly be issued
pursuant to the Transaction Documents.
(d) Notify the Special Counsel as promptly as reasonably possible,
and (if requested by any such Person) confirm such notice in writing to the
Purchasers no later than one Trading Day thereafter, of any of the following
events: (i) the Commission notifies the Company whether there will be a "review"
of any Registration Statement; (ii) the Commission comments in writing on any
Registration Statement (in which case the Company shall deliver to each
Purchaser a copy of such comments and of all written responses thereto); (iii)
any Registration Statement or any post-effective amendment is declared
effective; (iv) the Commission or any other Federal or state governmental
authority requests any amendment or supplement to a Registration Statement or
Prospectus or requests additional information related thereto; (v) the
Commission issues any stop order suspending the effectiveness of any
Registration Statement or initiates any Proceedings for that purpose; (vi) the
Company receives notice of any suspension of the qualification or exemption from
qualification of any Registrable Securities for sale in any jurisdiction, or the
initiation or threat of any Proceeding for such purpose; or (vii) the financial
statements included in any Registration Statement become ineligible for
inclusion therein or any statement made in any Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference is untrue in any material respect or any revision to a Registration
Statement, Prospectus or other document is required so that it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
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(e) Use its reasonable best efforts to avoid the issuance of or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of
any Registration Statement or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(f) Furnish to each Purchaser and the Special Counsel, without
charge, at least one conformed copy of each Registration Statement and each
amendment thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all exhibits
to the extent requested by such Person (including those previously furnished or
incorporated by reference) promptly after the filing of such documents with the
Commission.
(g) Promptly deliver to each Purchaser and the Special Counsel,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of prospectus) and each amendment or supplement thereto as such Persons may
reasonably request. The Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Purchasers in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Use its reasonable best efforts to list the Registrable
Securities covered by such Registration Statement with each Trading Market on
which it is then listed or approved.
(i) Prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the selling
Purchasers and the Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Purchaser reasonably
requests in writing, to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and to do any and
all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by a Registration
Statement; provided 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 taxation or general service of process in
any such jurisdiction where it is not then so subject.
(j) Cooperate with the Purchasers to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be delivered to a transferee pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement,
of all restrictive legends, and to enable such Registrable Securities to be in
such denominations and registered in such names as any such Purchasers may
request.
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(k) Upon the occurrence of any event described in Section
2.3(d)(vii), as promptly as reasonably possible, prepare a supplement or
amendment, including a post-effective amendment, to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(l) Cooperate with any due diligence investigation undertaken by
the Purchasers in connection with the sale of Registrable Securities, including
without limitation by making available any documents and information; provided
that the Company will not deliver or make available to any Purchaser material,
nonpublic information unless such Purchaser specifically requests in advance to
receive material, nonpublic information.
(m) If Purchasers of a majority of the Registrable Securities being
offered pursuant to a Registration Statement select underwriters for the
offering, the Company shall enter into and perform its obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, by providing customary legal opinions, comfort letters and
indemnification and contribution obligations.
(n) Comply with all applicable rules and regulations of the
Commission.
2.4 Underwritten Offerings.
(a) Underwriting Agreements. If requested by the underwriters for
an Underwritten Offering pursuant to Section 2.1(e), the Company and the holders
of Registrable Securities to be included therein shall enter into an
underwriting agreement with such underwriters, such agreement to be reasonably
satisfactory in substance and form to the Company, the holders of a majority of
each class of the Registrable Securities to be included in such Underwritten
Offering and the underwriters, and to contain such terms and conditions as are
generally prevailing in agreements of that type, including, without limitation,
indemnities no less favorable to the recipient thereof than those provided in
Section 2.7. All of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters included in each such underwriting agreement shall also be made to
and for the benefit of such holders and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holders. No holder
shall be required in any such underwriting agreement to make any representations
or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder, such holder's
Registrable Securities, such holder's intended method of distribution and any
other representations required by law.
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(b) Price and Underwriting Discounts. In the case of an
Underwritten Offering, the price, underwriting discount and other financial
terms for each class of Registrable Securities of the related underwriting
agreement shall be determined by the holders of a majority of such class of
Registrable Securities.
(c) Participation in Underwritten Offerings. No Person may
participate in an Underwritten Offering unless such Person (i) agrees to sell
such Person's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
2.5 No Inconsistent Agreements; Additional Rights. The Company will not
enter into, and is not currently a party to, any agreement which is, or could
be, inconsistent with the rights granted to the holders of Registrable
Securities by this Agreement other than as set forth in the Disclosure Schedule
to the Purchase Agreement.
2.6 Registration Expenses.
(a) The Company shall pay (or reimburse in the case of expenses
incurred pursuant to clause (v) below) all of the expenses and fees in
connection with a registration under this Agreement of Registrable Securities,
including, but not limited to (i) all registration and filing fees, and any
other fees and expenses associated with filings required to be made with the
Commission or the NASD, (ii) all fees and expenses of compliance with state
securities or "Blue Sky" laws, (iii) all printing, duplicating, word processing,
messenger, telephone, facsimile and delivery expenses (including expenses of
printing certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses), (iv)
all fees and disbursements of counsel for the Company, and of all independent
certified public accountants of the Company, (v) up to $10,000 for Special
Counsel for the Purchasers upon receipt of an itemized invoice therefor, (vi)
Securities Act liability insurance or similar insurance if the Company so
desires or the underwriter or underwriters, if any, so require in accordance
with then-customary underwriting practice, (vii) all fees and expenses incurred
in connection with the listing of the Registrable Securities on any securities
exchange or the quotation of the Registrable Securities on any inter-dealer
quotation system and (viii) all applicable rating agency fees with respect to
any applicable Registrable Securities. In addition, in all cases the Company
shall 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 audit and the fees and expenses of any Person, including
special experts, retained by the Company.
(b) The Company shall not be required to pay any other costs or
expenses in the course of the transactions contemplated hereby, including
underwriting discounts and commissions and transfer taxes attributable to the
sale of Registrable Securities and the fees and expenses of counsel to the
holders or the underwriters.
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2.7 Indemnification.
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Purchaser, the officers, directors, partners, members, agents and employees
of each of them, each Person who controls any such Purchaser (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, partners, members, agents and employees of each such
controlling Person, to the fullest extent permitted by applicable law, from and
against any and all Losses, as incurred, arising out of or relating to any
untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of
any Prospectus or form of prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (i) such untrue statements, alleged untrue
statements, omissions or alleged omissions are based solely upon information
regarding such Purchaser furnished in writing to the Company by such Purchaser
expressly for use therein, or to the extent that such information relates to
such Purchaser or such Purchaser's proposed method of distribution of
Registrable Securities and was either (A) in the form of the Plan of
Distribution attached hereto as Exhibit A or (B) was reviewed and expressly
approved in writing by such Purchaser or Special Counsel expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto or (ii) in the case of an occurrence of an event
of the type specified in Section 2.3(d)(v)-(vii), the use by such Purchaser of
an outdated or defective Prospectus after the Company has notified such
Purchaser in writing that the Prospectus is outdated or defective and prior to
the receipt by such Purchaser of the Advice contemplated in Section 3.8. The
Company shall notify the Purchasers promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in connection with the
transactions contemplated by this Agreement.
(b) Indemnification by Purchasers. Each Purchaser shall, severally
and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses (as
determined by a court of competent jurisdiction in a final judgment not subject
to appeal or review) arising solely out of any untrue statement of a material
fact contained in the Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto, or arising solely out of
any omission of a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus or form of prospectus
or supplement thereto, in the light of the circumstances under which they were
made) not misleading to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing by
such Purchaser to the Company specifically for inclusion in such Registration
Statement or such Prospectus, including without limitation the Plan of
Distribution in the Form of Exhibit A hereto. In no event shall the liability of
any selling Purchaser hereunder be greater in amount than the dollar amount of
the net proceeds received by such Purchaser upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
11
(c) Conduct of Indemnification Proceedings. (i) If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to
this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have proximately
and materially adversely prejudiced the Indemnifying Party.
(ii) An Indemnified Party shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed
in writing to pay such fees and expenses; or (ii) the Indemnifying Party shall
have failed promptly to assume the defense of such Proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (iii) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that a
conflict of interest is likely to exist under the applicable legal ethical code
if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). It being understood, however, that the Indemnifying
Party shall not, in connection with any one such Proceeding be liable for the
fees and expenses of more than one separate firm of attorneys at any time for
all Indemnified Parties, which firm shall be appointed by a majority of the
Indemnified Parties; provided, however, that in the case a single firm of
attorneys would be inappropriate due to actual or potential differing interests
or conflicts under the applicable legal ethical code between such Indemnified
Parties and any other party represented by such counsel in such Proceeding or
otherwise, then the Indemnifying Party shall be liable for the fees and expenses
of one additional firm of attorneys with respect to such Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding.
(iii) All fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten Trading Days of written notice containing an itemized
invoice thereof to the Indemnifying Party (regardless of whether it is
ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified Party is
not entitled to indemnification hereunder).
12
(d) Contribution. (i) If a claim for indemnification under Section
2.7(a) or (b) is unavailable to an Indemnified Party (by reason of public policy
or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 2.7(c), any reasonable attorneys' or
other reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 2.7(d), no Purchaser
shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the proceeds actually received by such Purchaser from the sale
of the Registrable Securities subject to the Proceeding exceeds the amount of
any damages that such Purchaser 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.
(iii) The indemnity and contribution agreements contained in
this Section 2.7 are in addition to any liability that the Indemnifying Parties
may have to the Indemnified Parties.
2.8 Rules 144 and 144A. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
holder of Registrable Securities after the transfer date, make publicly
available other information so long as necessary to permit sales pursuant to
Rule 144 or 144A under the Securities Act), and it will take such further action
as any holder of Registrable Securities may reasonably request, all to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 or 144A or Regulation S under the
Securities Act, as such Rules may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the Commission. Upon the request
of any holder of Registrable Securities, the Company will deliver to such holder
a written statement as to whether it has complied with such requirements and, if
not, the specifics thereof.
13
SECTION 3.
MISCELLANEOUS
3.1 Term. This Agreement shall terminate upon termination of the Stock
Purchase Agreement and if the transactions contemplated by the Stock Purchase
Agreement are completed, upon the earlier of (i) the end of the Effectiveness
Period; (ii) the date on which all Purchasers may sell the Registrable
Securities then held by, or issuable to, the Purchasers without restriction
pursuant to Rule 144(k) of the Securities Act; or (iii) such time as all
Registrable Securities held by, or issuable to, the Purchasers and registered
under the Registration Statement have been sold (A) pursuant to a registration
statement, (B) to or through a broker, dealer or underwriter in a public
distribution or a public securities transaction and/or (C) in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale. The provisions of Section 2.6, Section 2.7 and
Section 2.8 shall survive any termination. Upon any termination of this
Agreement, the Company may deregister any Registrable Securities that remain
unsold under the Registration Statement.
3.2 Injunctive Relief. It is hereby agreed and acknowledged that it
will be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall,
therefore, be entitled (in addition to any other remedy to which it may be
entitled in law or in equity) to injunctive relief, including, without
limitation, specific performance, to enforce such obligations, and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
3.3 Remedies. In the event of a breach by the Company or by a Holder of
any of their obligations under this Agreement, each Holder or the Company, as
the case may be, in addition to being entitled to exercise all rights granted by
law and under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
3.4 Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the same shall be in writing and signed by the Company and the
Holders of at least two-thirds of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority of the Registrable
Securities to which such waiver or consent relates; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence.
14
3.5 No Inconsistent Agreements. Neither the Company nor any of its
subsidiaries has entered, as of the date hereof, nor shall the Company or any of
its subsidiaries, on or after the date of this Agreement, enter into any
agreement with respect to its securities that would have the effect of impairing
the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. Except as and to the extent specified in the applicable
schedule to the Purchase Agreement, neither the Company nor any Subsidiary has
previously entered into any agreement granting any registration rights with
respect to any of its securities to any Person that have not been satisfied in
full.
3.6 No Piggyback on Registrations. Except as and to the extent
specified in the Disclosure Schedule to the Purchase Agreement, neither the
Company nor any of its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in the Registration
Statement to be filed under this Agreement other than the Registrable
Securities, and the Company shall not after the date hereof enter into any
agreement providing any such right to any of its security holders with respect
to any Registration Statements to be filed hereunder without the prior written
consent of the Holders of a majority of the Registrable Securities to be
included in such Registration Statement.
3.7 Compliance. Each Holder covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act as applicable to
it in connection with sales of Registrable Securities pursuant to the
Registration Statement.
3.8 Discontinued Disposition. Each Holder agrees by its acquisition of
such Registrable Securities that, upon receipt of a notice from the Company of
the occurrence of any event of the kind described in Sections 2.3(d)(v),
2.3(d)(vi), or 2.3(d)(vii), such Holder will forthwith discontinue disposition
of such Registrable Securities under the Registration Statement until such
Holder's receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement contemplated by Section 2.3(k), or until it is advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement. The Company may provide
appropriate stop orders to enforce the provisions of this paragraph.
3.9 Piggy-Back Registrations. If at any time during the Effectiveness
Period there is not an effective Registration Statement covering all of the
Registrable Securities and the Company shall determine to prepare and file with
the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to each Holder written notice of such
determination and, if within fifteen days after receipt of such notice, any such
Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
holder requests to be registered.
15
3.10 Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Agreement on a day that is not a Trading Day
or later than 6:30 p.m. (New York City time) and earlier than 11:59 p.m. (New
York City time) on any Trading Day, (c) the Trading Day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service, or (d)
upon actual receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as set forth in the
Purchase Agreement.
3.11 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not
assign its rights or obligations hereunder without the prior written consent of
each Holder. Each Holder may assign its rights and obligations hereunder in the
manner and to the extent permitted under the Purchase Agreement.
3.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
3.13 GOVERNING LAW; VENUE; WAIVER OF JURY TRAIL. ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (OTHER THAN ANY CONFLICT OF LAW RULES THAT MIGHT
RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION). EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO
THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY
WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR
CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY
AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT
SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HEREBY WAIVES ALL
RIGHTS TO A TRIAL BY JURY.
16
3.14 Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
3.15 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
3.16 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
17
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
IMPAX LABORATORIES, INC.
By: Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Co-Chief Executive Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF PURCHASER TO FOLLOW]
Vertical Ventures Investments, LLC
By: Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title:Manager
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Smithfield Fiduciary LLC
By: Xxxx X. Chill
--------------------------
Name: Xxxx X. Chill
Title: Authorized Signatory
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
WD Partnership, L.P.
By: Windcrest Discovery Investment LLC
By: Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X Xxxxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Xxxxxxx US Discovery Fund III, L.P.
By: Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Xxxxxxx US Discovery Offshore Fund III, L.P.
By: Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
H&Q Life Sciences Investors
By: Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
Title: President Emeritius
The name H&Q Life Sciences Investors is the designation of the Trustees
for the time being under a Declaration of Trust dated February 20, 1992, as
amended, and all persons dealing with H&Q Life Sciences Investors must look
solely to the trust property for the enforcement of any claim against H&Q Life
Sciences Investors, as neither the Trustees, officers nor shareholders assume
any personal liability for the obligations entered into on behalf of H&Q Life
Sciences Investors.
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
H&Q Healthcare Investors
By: Xxxx X. Xxxx
--------------------------
Name: Xxxx X. Xxxx
Title: President Emeritius
The name H&Q Healthcare Investors is the designation of the Trustees for the
time being under an Amended and Restated Declaration of Trust dated April 12,
1987, as amended, and all persons dealing with H&Q Healthcare Investors must
look solely to the trust property for the enforcement of any claim against H&Q
Healthcare Investors, as neither the Trustees, officers nor shareholders assume
any personal liability for the obligations entered into on behalf of H&Q
Healthcare Investors.
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Mainfield Enterprises, Inc.
By: Avi Vigder
-----------------------
Name: Avi Vigder
Title: Authorized Sigantory
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Rx Healthcare Partners I LP
By: Rx Associates LLC, General Partner
By: Xxxxx Xxxxx
-------------------
Name: Xxxxx Xxxxx
Title: Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Rx Healthcare Partners II LP
By: Rx Associates LLC, General Partner
By: Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Rx Healthcare Overseas Fund
By: Rx Capital Management LP,
Investment Manager
By: Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Ashford Capital Management, Inc. with discretion f/b/o
PEPCO Holding Retirement Plan Master Trust
By: Xxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Chairman and CEO, Ashford Capital
Management, Inc.
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Ashford Capital Management, Inc. with discretion f/b/o
Anvil Investment Associates, L.P.
By: Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: General Partner,
Anvil Management Co., LLC,
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Caduceus Capital Trust
By: Winchester Global Trust Company Limited
as Trustee
By: Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Caduceus Capital II, LP
By: OrbiMed Advisors LLC, General Partner
By: Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
PW Eucalyptus Fund L.L.C.
By: OrbiMed Advisors LLC, JV Partner
By: Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
PW Eucalyptus Fund, Ltd.
By: OrbiMed Advisors LLC, JV Partner
By: Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Post Venture IV, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Integrated Holdings V, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Netherlands II, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Integrated Holdings IV Post Venture, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Post Venture III, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Netherlands I, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Netherlands III, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Integrated Holdings II Limited
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Venture Capital IV, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Knightsbridge Venture Capital III, L.P.
By: OrbiMed Advisors LLC
By: Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
TABLE OF CONTENTS
SECTION 1. DEFINITIONS............................................................................................1
----------------------
1.1 Defined Terms.........................................................................................1
--- -------------
1.2 General Interpretive Principles.......................................................................3
--- --------------------------------
SECTION 2. REGISTRATION RIGHTS....................................................................................3
------------------------------
2.1 Shelf Registration....................................................................................3
--- -------------------
2.2 [intentionally omitted]...............................................................................6
--- -----------------------
2.3 Registration Procedures...............................................................................6
--- -----------------------
2.4 Underwritten Offerings................................................................................9
--- -----------------------
2.5 No Inconsistent Agreements; Additional Rights........................................................10
--- ----------------------------------------------
2.6 Registration Expenses................................................................................10
--- ---------------------
2.7 Indemnification......................................................................................11
--- ----------------
2.8 Rules 144 and 144A...................................................................................13
--- ------------------
SECTION 3. MISCELLANEOUS.........................................................................................14
------------------------
3.1 Term.................................................................................................14
--- ----
3.2 Injunctive Relief....................................................................................14
--- -----------------
3.3 Remedies.............................................................................................14
--- --------
3.4 Amendments and Waivers...............................................................................14
--- ----------------------
3.5 No Inconsistent Agreements...........................................................................15
--- --------------------------
3.6 No Piggyback on Registrations........................................................................15
--- -----------------------------
3.7 Compliance...........................................................................................15
--- ----------
3.8 Discontinued Disposition.............................................................................15
--- ------------------------
3.9 Piggy-Back Registrations.............................................................................15
--- ------------------------
3.10 Notices..............................................................................................16
---- -------
3.11 Successors and Assigns...............................................................................16
---- ----------------------
3.12 Counterparts.........................................................................................16
---- ------------
3.13 Governing Law; Venue; Waiver Of Jury Trail...........................................................16
---- ------------------------------------------
3.14 Cumulative Remedies..................................................................................17
---- -------------------
3.15 Severability.........................................................................................17
---- ------------
3.16 Headings.............................................................................................17
---- --------
