Exhibit 10.53
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of this 17 day of July, 2003 by and among Antares Pharma, Inc. a
Minnesota corporation (the "Company"), and the "Investors" named in that certain
Purchase Agreement, of even date herewith, by and among the Company and the
Investors (the "Purchase Agreement"). Capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Purchase Agreement.
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" means, with respect to any person, any other person which
directly or indirectly controls, is controlled by, or is under common control
with, such person.
"Business Day" means a day, other than a Saturday or Sunday, on which banks
in New York City are open for the general transaction of business.
"Common Stock" shall mean the Company's common stock, par value $0.01 per
share, and any securities into which such shares may hereinafter be
reclassified.
"Investors" shall mean the Investors identified in the Purchase Agreement
and any Affiliate or permitted transferee of any Investor who is a subsequent
holder of any Warrants or Registrable Securities.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a registration made by
preparing and filing a Registration Statement or similar document in compliance
with the 1933 Act (as defined below), and the declaration or ordering of
effectiveness of such Registration Statement or document.
"Registrable Securities" shall mean the shares of Common Stock issuable (i)
pursuant to the Purchase Agreement, (ii) upon the exercise of the Warrants, and
(iii) issuable with respect to or in exchange for Registrable Securities;
provided, that, a security shall cease to be a Registrable Security upon sale
pursuant to a Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"Warrants" means, warrants to purchase shares of Common Stock issued to the
Investors pursuant to the Purchase Agreement.
"Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Warrants.
2. Registration.
(a) Registration Statements.
(i) Promptly following the closing of the purchase and sale of
the securities contemplated by the Purchase Agreement (the "Closing Date"), but
in no event later than ninety (90) days following the Closing Date (such earlier
date, the "Filing Deadline"), the Company shall prepare and file with the SEC
one Registration Statement on Form S-3 (or, if Form S-3 is not then available to
the Company, on such form of registration statement as is then available to
effect a registration for resale of the Registrable Securities, subject to the
Investors' consent), covering the resale of all of the Registrable Securities
without regard to any limitation on the exercise of the Warrants issued on the
Closing Date. Such Registration Statement also shall cover, to the extent
allowable under the 1933 Act and the rules promulgated thereunder (including
Rule 416), such indeterminate number of additional shares of Common Stock
resulting from stock splits, stock dividends or similar transactions with
respect to the Registrable Securities. The Company shall use its reasonable best
efforts to obtain from each person who has piggyback registration rights a
waiver of those rights with respect to the Registration Statement. The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors and their counsel prior to its
filing or other submission. If a Registration Statement covering the Registrable
Securities is not filed with the SEC on or prior to the Filing Deadline, the
Company will make pro rata payments to each Investor, as liquidated damages and
not as a penalty, in an amount equal to 1.5% of the aggregate amount invested by
such Investor for each 10-day period or pro rata for any portion thereof
following the date by which such Registration Statement should have been filed
for which no Registration Statement is filed with respect to the Registrable
Securities. Such payments shall be in partial compensation to the Investors, and
shall not constitute the Investors' exclusive remedy for such events. Such
payments shall be made to each Investor in cash. The amounts payable as
liquidated damages pursuant to this paragraph shall be payable in lawful money
of the United States, and amounts payable as liquidated damages shall be paid
within two (2) Business Days of the last day of each such 10-day period during
which the Registration Statement should have been filed for which no
Registration Statement was filed with respect to the Registrable Securities.
(ii) Additional Registrable Securities. Upon the written demand
of any Investor and upon any change in the Warrant Price or any change in the
number of Warrant Shares purchaseable under the Warrant (as defined in the
Warrants) such that additional shares of Common Stock become issuable upon the
exercise of the Warrants, the Company shall prepare
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and file with the SEC one or more Registration Statements on Form S-3 (or, if
Form S-3 is not then available to the Company, on such form of registration
statement as is then available to effect a registration for resale of such
additional shares of Common Stock (the "Additional Shares")) covering the resale
of the Additional Shares, but only to the extent the Additional Shares are not
at the time covered by an effective Registration Statement. Such Registration
Statement also shall cover, to the extent allowable under the 1933 Act and the
rules promulgated thereunder (including Rule 416), such indeterminate number of
additional shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Additional Shares. The Company shall
use its best efforts to obtain from each person who has piggyback registration
rights a waiver of those rights with respect to such Registration Statement. The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors and their counsel prior to its
filing or other submission. If a Registration Statement covering the Additional
Shares is required to be filed under this Section 2(a)(ii) and is not filed with
the SEC within ten (10) days of the request of any Investor, the Company will
make pro rata payments to each Investor, as liquidated damages and not as a
penalty, in an amount equal to 1.5% of the aggregate amount invested by such
Investor for each 10-day period or pro rata for any portion thereof following
the date by which such Registration Statement should have been filed for which
no Registration Statement is filed with respect to the Additional Shares. The
amounts payable as liquidated damages pursuant to this paragraph shall be
payable in lawful money of the United States, and amounts payable as liquidated
damages shall be paid within two (2) Business Days of the last day of each such
10-day period during which the Registration Statement should have been filed for
which no Registration Statement was filed with respect to the Additional Shares.
(b) Expenses. The Company will pay all expenses associated with
each registration, including filing and printing fees, counsel and accounting
fees and expenses, costs associated with clearing the Registrable Securities for
sale under applicable state securities laws and listing fees, but excluding the
fees and disbursements of more than one law firm serving as counsel to the
Investors and discounts, commissions, fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals with respect to the
Registrable Securities being sold.
(c) Effectiveness.
(i) The Company shall use its best efforts to have the
Registration Statement declared effective not later than the earlier to occur of
(y) 120 days after the date of filing of such Registration Statement, or (z)
five (5) Business Days following the Company's receipt of a no-review letter
from the SEC relating to the Registration Statement; provided, however, if the
Registration Statement is not declared effective within the time period set
forth above, the Company shall continue to use its best efforts to have the
Registration Statement declared effective as soon as possible thereafter. If (A)
the Company does not use its best efforts to have the Registration Statement
declared effective in accordance with the preceding sentence, or (B) after a
Registration Statement has been declared effective by the SEC sales cannot be
made pursuant to such Registration Statement for any reason (including, without
limitation, by reason of a stop order, or the Company's failure to update the
Registration Statement), but except as excused pursuant to subparagraph (ii)
below, then the Company will make pro rata payments
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to each Investor, as liquidated damages and not as a penalty, in an amount equal
to 1.5% of the aggregate amount invested by such Investor for each 10-day period
or pro rata for any portion thereof following the date (1) by which such
Registration Statement should have been effective as described in (A) above had
the Company used its best efforts to have the Registration Statement declared
effective or (2) sales cannot be made pursuant to such Registration Statement
after it has been declared effective as described in (B) above (the "Blackout
Period"). Such payments shall be in partial compensation to the Investors, and
shall not constitute the Investors' exclusive remedy for such events. The
Blackout Period shall terminate upon (x) the effectiveness of the Registration
Statement in the case of (A) above; and (y) the Registration Statement again
being available for sales by the Investors in the case of (B) above. The amounts
payable as liquidated damages pursuant to this paragraph shall be payable in
lawful money of the United States, and amounts payable as liquidated damages
shall be paid within two (2) Business Days of the last day of each 10-day period
following the commencement of the Blackout Period until the termination of the
Blackout Period.
(ii) Notwithstanding the existence of an effective Registration
Statement, each Investor agrees that, pursuant to a Lock-Up Agreement of even
date herewith, such Investor will not transfer or sell the Registrable
Securities prior to January 1, 2004.
(iii) For not more than fifteen (15) consecutive days or for a
total of not more than thirty (30) days in any twelve (12) month period, the
Company may delay the disclosure of material non-public information concerning
the Company, by terminating or suspending effectiveness of any registration
contemplated by this Section 2 containing such information, the disclosure of
which at the time is not, in the good faith opinion of the Company, in the best
interests of the Company (an "Allowed Delay"); provided, that the Company shall
promptly (a) notify the Investors in writing of the existence of (but in no
event, without the prior written consent of an Investor, shall the Company
disclose to such Investor any of the facts or circumstances regarding) material
non-public information giving rise to an Allowed Delay, and (b) advise the
Investors in writing to cease all sales under the Registration Statement until
the end of the Allowed Delay.
(d) Underwritten Offering. If any offering pursuant to a
Registration Statement filed pursuant to Section 2(a) hereof involves an
underwritten offering, the Company shall have the right to select an investment
banker and manager to administer the offering, which investment banker or
manager shall be reasonably satisfactory to a majority of the Investors.
3. Company Obligations. The Company will use its best efforts to effect the
registration of the Registrable Securities in accordance with the terms hereof,
and pursuant thereto the Company will, as expeditiously as possible:
(a) use its best efforts to cause such Registration Statement
to become effective and to remain continuously effective for a period that will
terminate upon the date on which all Registrable Securities, covered by such
Registration Statement, as amended from time to time, have been sold;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the Prospectus as
may be necessary to keep the
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Registration Statement effective for the period specified in Section 3(a) and to
comply with the provisions of the 1933 Act and the 1934 Act with respect to the
distribution of all Registrable Securities;
(c) provide copies to and permit counsel designated by the
Investors to review each Registration Statement and all amendments and
supplements thereto no fewer than five (5) days prior to their filing with the
SEC and not file any document to which such counsel reasonably objects within
four (4) days following receipt by the Investors and counsel designated by the
Investors of such Registration Statement and/or amendments and supplements
thereto;
(d) furnish to the Investors and their legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company (but not later than two (2) Business Days after
the filing date, receipt date or sending date, as the case may be), at least
five (5) copies of any Registration Statement and any amendment thereto, each
preliminary prospectus and Prospectus and each amendment or supplement thereto,
and each letter written by or on behalf of the Company to the SEC or the staff
of the SEC, and each item of correspondence from the SEC or the staff of the
SEC, in each case relating to such Registration Statement (other than any
portion thereof which contains information for which the Company has sought
confidential treatment), and (ii) such number of copies of a Prospectus,
including a preliminary prospectus, and all amendments and supplements thereto
and such other documents as each Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such Investor,
which in any event, shall not exceed ten (10) Prospectuses;
(e) in the event the Company selects an underwriter for the
offering, the Company shall enter into and perform its reasonable obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(f) if required by the underwriter, the Company shall furnish,
on the effective date of the Registration Statement (i) an opinion, dated as of
such date, from independent legal counsel representing the Company for purposes
of such Registration Statement, in form, scope and substance as is customarily
given in an underwritten public offering, addressed to the underwriter and (ii)
a letter, dated such date, from the Company's independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriter and the Investors;
(g) use its reasonable best efforts to prevent the issuance of
any stop order or other suspension of effectiveness and, if such order is
issued, obtain the withdrawal of any such order at the earliest possible moment;
(h) prior to any public offering of Registrable Securities,
use its reasonable best efforts to register or qualify or cooperate with the
Investors and their counsel in connection with the registration or qualification
of such Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions reasonably requested by the Investors
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and do any and all other reasonable acts or things necessary or advisable to
enable the distribution in such jurisdictions of the Registrable Securities
covered by the Registration Statement;
(i) cause all Registrable Securities covered by a Registration
Statement to be listed on each securities exchange, interdealer quotation system
or other market on which similar securities issued by the Company are then
listed;
(j) immediately notify the Investors, at any time when a
Prospectus relating to the Registrable Securities is required to be delivered
under the 1933 Act, upon discovery that, or upon the happening of any event as a
result of which, the Prospectus included in such Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of any such holder, promptly prepare and furnish to such holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include 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 not misleading in
light of the circumstances then existing; and
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act
and take such other actions as may be reasonably necessary to facilitate the
registration of the Registrable Securities hereunder; and make available to its
security holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a period of
at least twelve (12) months, beginning after the effective date of each
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act (for the purpose of this subsection 3(k),
"Availability Date" means the 45th day following the end of the fourth fiscal
quarter that includes the effective date of such Registration Statement, except
that, if such fourth fiscal quarter is the last quarter of the Company's fiscal
year, "Availability Date" means the 90th day after the end of such fourth fiscal
quarter).
4. Due Diligence Review; Information. The Company shall make available,
during normal business hours, for inspection and review by the Investors,
advisors to and representatives of the Investors (who may or may not be
affiliated with the Investors), and any underwriter participating in any
disposition of Common Stock on behalf of the Investors pursuant to a
Registration Statement or amendments or supplements thereto or any blue sky,
NASD or other filing, all financial and other records, all filings with the SEC,
and all other corporate documents and properties of the Company as may be
reasonably necessary for the purpose of such review, and cause the Company's
officers, directors and employees, within a reasonable time period, to supply
all such information reasonably requested by the Investors or any such
representative, advisor or underwriter in connection with such Registration
Statement (including, without limitation, in response to all questions and other
inquiries reasonably made or submitted by any of them), prior to and from time
to time after the filing and effectiveness of the Registration Statement for the
sole purpose of enabling the Investors and such representatives, advisors and
underwriters and their respective accountants and attorneys to conduct initial
and
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ongoing due diligence with respect to the Company and the accuracy of such
Registration Statement.
Notwithstanding the foregoing, the Company shall not disclose material nonpublic
information to the Investors, or to advisors to or representatives of the
Investors, unless prior to disclosure of such information the Company identifies
such information as being material nonpublic information and provides the
Investors, such advisors and representatives with the opportunity to accept or
refuse to accept such material nonpublic information for review.
5. Obligations of the Investors.
(a) Each Investor shall furnish in writing to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it, as
shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. At least fifteen (15) Business Days prior
to the first anticipated filing date of any Registration Statement, the Company
shall notify each Investor of the information the Company requires from such
Investor if such Investor elects to have any of the Registrable Securities
included in the Registration Statement. An Investor shall provide such
information to the Company at least five (5) Business Days prior to the first
anticipated filing date of such Registration Statement if such Investor elects
to have any of the Registrable Securities included in the Registration
Statement. For purposes of the first sentence of this Section 3(a), the methods
of distribution to be specified by the Investors shall include, without
limitation, the sale of the Registrable Securities through (i) options
transactions relating to the Registrable Securities, whether such options are
listed on an options exchange or otherwise, or (ii) short sales of the
Registrable Securities. The Registration Statement shall also provide that, for
purposes of the distribution of the Registrable Securities, the Investors may
(i) enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the Registrable
Securities and deliver the Registrable Securities to close out their short
positions or (ii) loan or pledge the Registrable Securities to broker-dealers or
other financial institutions, which in turn may sell the Registrable Securities.
(b) Each Investor, by its acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement hereunder, unless such Investor has notified the Company in writing of
its election to exclude all of its Registrable Securities from such Registration
Statement.
(c) In the event the Company, at the request of the Investors,
determines to engage the services of an underwriter, such Investor agrees to
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, including, without limitation, customary indemnification and
contribution obligations, with the managing underwriter of such offering and
take such other actions as are reasonably required in order to expedite or
facilitate the dispositions of the Registrable Securities.
(d) Each Investor agrees that, upon receipt of any notice from
the Company of the happening of any event rendering a Registration Statement no
longer effective, such Investor will immediately discontinue disposition of
Registrable Securities pursuant to the
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Registration Statement covering such Registrable Securities, until the
Investor's receipt of the copies of the supplemented or amended Prospectus filed
with the SEC and declared effective and, if so directed by the Company, the
Investor shall deliver to the Company (at the expense of the Company) or destroy
(and deliver to the Company a certificate of destruction) all copies in the
Investor's possession of the Prospectus covering the Registrable Securities
current at the time of receipt of such notice.
(e) No Investor may participate in any third party
underwritten registration hereunder unless it (i) agrees to sell the Registrable
Securities on the basis provided in any underwriting arrangements in usual and
customary form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions. Notwithstanding the foregoing, no Investor shall be
required to make any representations to such underwriter, other than those with
respect to itself and the Registrable Securities owned by it, including its
right to sell the Registrable Securities, and any indemnification in favor of
the underwriter by the Investors shall be several and not joint and limited in
the case of any Investor, to the proceeds received by such Investor from the
sale of its Registrable Securities. The scope of any such indemnification in
favor of an underwriter shall be limited to the same extent as the indemnity
provided in Section 6(b) hereof.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
and hold harmless each Investor and their respective Affiliates, officers,
directors, members, employees and agents, successors and assigns, against any
losses, claims, damages or liabilities, joint or several, to which such seller,
officer, director, member, or controlling person may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof; (ii) any blue sky application
or other document executed by the Company specifically for that purpose or based
upon written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Registrable Securities under
the securities laws thereof (any such application, document or information
herein called a "Blue Sky Application"); (iii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iv) any violation by the Company or
its agents of any rule or regulation promulgated under the 1933 Act applicable
to the Company or its agents and relating to action or inaction required of the
Company in connection with such registration; or (v) any failure to register or
qualify the Registrable Securities included in any such Registration in any
state where the Company or its agents has affirmatively undertaken or agreed in
writing that the Company will undertake such registration or qualification on an
Investor's behalf (the undertaking of any underwriter chosen by the Company
being attributed to the Company) and will reimburse such Investor, and each such
officer, director or member and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable
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in any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished in writing by such Investor or any such controlling person
specifically for use in such Registration Statement or Prospectus.
(b) Indemnification by the Investors. In connection with any
registration pursuant to the terms of this Agreement, each Investor will furnish
to the Company in writing such information as the Company reasonably requests
concerning such Investor or the proposed manner of such Investor's distribution
for use in connection with any Registration Statement or Prospectus and agrees,
severally but not jointly, to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its Subsidiaries and its and their respective
directors, officers, employees, shareholders and each person who controls the
Company (within the meaning of the 0000 Xxx) against any losses, claims,
damages, liabilities and expenses (including reasonable attorney fees) resulting
from any untrue statement of a material fact or any omission of a material fact
required to be stated in the Registration Statement or Prospectus or preliminary
prospectus or amendment or supplement thereto or necessary to make the
statements therein not misleading, to the extent, but only to the extent that
such untrue statement or omission is contained in any information furnished in
writing by such Investor to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement thereto. In no
event shall the liability of an Investor be greater in amount than the aggregate
dollar amount of the proceeds (net of all expense paid by such Investor and the
amount of any damages such Investor has otherwise been required to pay by reason
of such untrue statement or omission) received by such Investor upon the sale of
the Registrable Securities included in the Registration Statement giving rise to
such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon advice of its counsel, a conflict of
interest exists between such person and the indemnifying party with respect to
such claims (in which case, if the person notifies the indemnifying party in
writing that such person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such person); 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 hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more than
one separate firm of attorneys at any time for all such indemnified parties. No
indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
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plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation.
(d) Contribution. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless, other than as expressly
specified therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim, damage
or liability in such proportion as is appropriate to reflect the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the 1933 Act shall be
entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a holder of
Registrable Securities be greater in amount than the aggregate dollar amount of
the proceeds (net of all expenses paid by such holder and the amount of any
damages such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it upon
the sale of the Registrable Securities giving rise to such contribution
obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only
by a writing signed by the parties hereto. The Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company shall have obtained the written consent to such
amendment, action or omission to act, of each Investor.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made as set forth in Section 9.4 of the Purchase
Agreement.
(c) Assignments and Transfers by Investors. The provisions of
this Agreement shall be binding upon and inure to the benefit of the Investors
and their respective successors and assigns. An Investor may transfer or assign,
in whole or from time to time in part, to one or more persons it rights
hereunder in connection with the transfer of Registrable Securities by such
Investor to such person, provided that such Investor complies with all
applicable laws thereto and provides written notice of assignment to the Company
promptly after such assignment is effected.
(d) Assignments and Transfers by the Company. This Agreement
may not be assigned by the Company without the prior written consent of each
Investor, except that without the prior written consent of the Investors, but
after notice duly given, the Company shall assign its rights and delegate its
duties hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of a
merger or consolidation of the Company with or into another corporation or the
sale of all or substantially all of the Company's assets.
(e) Benefits of the Agreement. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer
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upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
(f) Counterparts; Faxes. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also
be executed via facsimile, which shall be deemed an original.
(g) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provisions hereof prohibited or
unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(k) Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of law.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the date first
above written.
The Company: ANTARES PHARMA, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Xxxxx: Chief Financial Officer,
Vice President - Finance
The Investors: SCO SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
NORTH SOUND LEGACY FUND LLC
NORTH SOUND LEGACY INSTITUTIONAL FUND LLC
NORTH SOUND LEGACY INTERNATIONAL LTD.
Each By: /s/ Xxxxxx XxXxxxxx
---------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Managing Member
VERTICAL VENTURES INVESTMENTS, LLC
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Manager
/s/ Xxxx Xxxxxxxx
-----------------------------------------------
Xxxx Xxxxxxxx
12
