Exhibit 10.33
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (this
"Amendment") is made as of this 28th day of September, 2006, by and among:
Molecular Insight Pharmaceuticals, Inc., a Massachusetts
corporation (the "Company"), the holders (the "Series A
Holders") of the Series A Convertible Preferred Stock, par
value $0.01 per share, of the Company (the "Series A Preferred
Stock") set forth on Schedule A to the Agreement;
The holders (the "Series B Holders") of the Series B
Convertible Preferred Stock, par value $0.01 per share, of the
Company (the "Series B Preferred Stock") set forth on Schedule
B to the Agreement;
The holders (the "Series C Holders" and together with the
Series A Holders and the Series B Holders, the "Preferred
Holders") of the Series C Convertible Preferred Stock, par
value $0.01 per share, of the Company (the "Series C Preferred
Stock") set forth on Schedule C to the Agreement;
The holders (the "Common Holders") of the common stock of the
Company, par value $0.01 per share (the "Common Stock") that
are signatories to the Agreement; and
The holders (the "Note Holders" and together with the Series A
Holders, the Series B Holders, the Series C Holders and the
Common Holders, each, an "Investor" and collectively, the
"Investors") of those certain Convertible Promissory Notes in
aggregate principal amount of $15,400,000.00 and dated of even
date herewith set forth on Schedule D attached hereto.
RECITALS:
A. The Company and the Series A Holders, Series B Holders,
Series C Holders and Common Holders have previously entered into a Registration
Rights Agreement dated as of March 29, 2005 (as amended or supplemented to date,
the "Agreement"); and
B. The Company and the Note Holders have entered into a
Securities Purchase Agreement of even date herewith (the "Securities Purchase
Agreement") pursuant to which, among other things, the Company has issued
Convertible Promissory Notes and Common Stock Warrants to each Note Holder and,
as a condition to the issuance of such securities, the parties hereto desire to
enter into this Amendment to set forth, among other things, the rights of the
Note Holders with respect to the registration of shares of Common Stock held by
and issuable to the Note Holders upon conversion of the Notes and the exercise
of Common Stock Warrants issued to each Note Holder pursuant to the Securities
Purchase Agreement; and
C. The Company, the Note Holders and the other Investors wish
to enter into this Amendment to provide registration rights with respect to the
Common Stock of the Company issued or issuable to the Note Holders.
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and each Preferred Holder, severally and
not jointly, hereby agree to amend the Agreement as follows:
1. Article I of the Agreement, titled "Definitions" is hereby amended
to add the following definitions to Article I in alphabetical order:
"Note" shall mean any of those certain Convertible Promissory
Notes issued by the Company to a Note Holder in an aggregate principal amount of
$15,400,000.00 pursuant to the Securities Purchase Agreement.
"Note Demand Registration" shall have the meaning ascribed to
it in Section 2.1(a)(iii).
"Note and Warrant Stock" shall mean any shares of capital
stock issued or issuable by the Company to any Note Holder or Warrant Holder
upon the conversion of any Note or upon the exercise of any Warrant, as the case
may be.
"Requisite Note Holders" shall mean (i) Cerberus and (ii) the
holders of a majority of the aggregate principal amount outstanding of the Notes
(excluding for this purpose the principal amount of any Note(s) held by
Cerberus).
"Warrant" shall mean those certain Common Stock Warrants
issued by the Company to the Note Holders pursuant to the Securities Purchase
Agreement pursuant to which each Note Holder may acquire Common Stock of the
Company.
"Warrant Holder" shall mean the holder of any Warrant.
2. The definitions of "Affiliate" and "Registrable Securities" set forth
in Article I is hereby deleted in its entirety and the following substituted in
lieu thereof:
"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. Notwithstanding the foregoing, none of the
Company, its owners, officers, directors, employees, agents or advisors (or any
of their family members) shall be deemed an "Affiliate" of a Preferred Holder or
Note Holder, unless any such Person is otherwise (i.e., independent of the
Company) an Affiliate of such Preferred Holder or Note Holder.
"Registrable Securities" means: (i) the Preferred Stock; (ii)
any Note and Warrant Stock, (iii) any and all shares of Common Stock issued or
issuable in respect of the Preferred Stock, the Notes or the Warrants upon any
stock split, reverse stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, sale of assets or similar event; (iv) the
shares of Common Stock issuable as payment-in-kind dividends on the Preferred
Stock in accordance with the terms thereof; and (v) any other shares of Common
Stock acquired by any of the Investors at any time. Notwithstanding the
foregoing, the term "Registrable Securities" shall not include any shares which
have been (w) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, (x) sold 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 are removed upon the consummation of
such sale, (y) registered under the Securities Act pursuant to an effective
Registration Statement filed thereunder or (z) publicly sold pursuant to Rule
144 under the Securities Act.
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3. Section 2.1(a) of the Agreement is amended to insert the following as
clause (iii) therein and renumber the existing clauses (iii) and (iv) to be
clauses (iv) and (v) therein:
(iii) The Requisite Note Holders may require the Company to
register for sale under the Securities Act all or any portion of the Registrable
Securities held by the Note Holders for sale in the manner specified in such
Demand Notice (a "Note Demand Registration"). The Requisite Note Holders shall
be entitled to only two (2) Note Demand Registrations pursuant to this Section
2.1(a)(iii); provided, that, they may only make demand for one such Note Demand
Registration in any twelve month period, unless any of them shall have had any
Registrable Securities excluded from a Registration Statement that was filed
during such twelve month period.
4. Section 2.1(a) of the Agreement is further amended to delete in its
entirety clause (iv) (Clause (v) as renumbered pursuant to Section 3 of this
Amendment) and the following substituted in lieu thereof:
(v) If the Company is then a registrant entitled to use Form
S-3 or any successor form thereto to effect the distribution of such Registrable
Securities for public sale or re-sale (as the case may be), (aa) the Requisite
Series C Holders may require the Company to register for sale or re-sale under
the Securities Act by filing a Registration Statement on Form S-3 or any
comparable or successor form thereto for a public offering of all or any portion
of the Registrable Securities held by them, (bb) the Requisite Series AB Holders
may require the Company to register for sale or re-sale under the Securities Act
by filing a Registration Statement on Form S-3 or any comparable or successor
form thereto for a public offering of all or any portion of the of Registrable
Securities held by them, or (cc) the Requisite Note Holders may require the
Company to register for sale or re-sale under the Securities Act by filing a
Registration Statement on Form S-3 or any comparable or successor form thereto
for a public offering of all or any portion of the Registrable Securities held
by them, in each case, in accordance with the method of disposition specified in
the Demand Notice. Whenever the Company is required by this Section 2.1(a)(v) to
effect the registration of Registrable Securities, each of the procedures and
requirements of Sections 2.1 and 2.4 shall apply to such registration, and the
Company shall cause such Registration Statement to be declared effective within
one hundred eighty (180) days after the Company's receipt of the request for
such registration. There shall be no limitation on the number of registrations
on Form S-3 which may be requested and obtained under this Section 2.1, and such
requests and registrations shall not reduce the number of Series C Demand
Registrations, Series AB Demand Registrations or Note Demand Registrations, as
the case may be, to which the Series C Holders, Series AB Holders or Note
Holders, as the case may be, are entitled hereunder.
5. Section 2.1(d) and (e) of the Agreement are deleted in their
entirety and the following substituted in lieu thereof:
(d) A Registration Statement filed pursuant to this Section
2.1 may, subject to the following provisions and in addition to the Registrable
Securities, include (i) shares of Common Stock for sale by the Company for its
own account and (ii) shares of Common Stock held by persons other than the
Company, the Preferred Holders and the Note Holders (the "Other Shareholders"),
in each case for sale in accordance with the method of disposition specified by
the Initiating Stockholders and subject to the exclusions provided herein. If
such registration shall be underwritten, the Company, the Preferred Holders, the
Note Holders and the Other Shareholders proposing to distribute their shares
through such underwriting shall enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for such underwriting; the terms of which shall not be more favorable
to the Company and such Other Shareholders than the terms afforded therein to
the Initiating Stockholders. If and to the extent that the managing underwriter
determines that marketing factors require a limitation on the number of shares
to be included in such registration, then the shares of Common Stock
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sought to be registered by the Preferred Holders, the Note Holders and the Other
Shareholders and shares of Common Stock to be sold by the Company for its own
account shall be excluded from such registration to the extent so required by
such managing underwriter in the following order of priority: (1st) and unless
the Other Shareholders and the Company have otherwise agreed in writing, such
exclusion shall be applied first to the shares sought to be registered by the
Other Shareholders to the extent any such reduction is required by the managing
underwriter; (2nd) then to the shares of Common Stock of the Company to be
included for its own account to the extent any such reduction is required by the
managing underwriter; (3rd) then the shares sought to be registered by the
Series AB Holders to the extent any such reduction is required by the managing
underwriter; and (4th) then to the shares sought to be registered by the Series
C Holders and the Note Holders, ratably between them treating them as one class
for the purpose of this clause (d), to the extent any such reduction is required
by the managing underwriter. In any event, all securities to be sold other than
Registrable Securities of the Series C Holders and the Note Holders shall be
excluded prior to any exclusion of Registrable Securities of the Series C
Holders and the Note Holders, if they are participating in such registration,
whether or not they are the Initiating Stockholders with respect to such
registration. No Registrable Securities or other securities, in either case,
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. If any of the Preferred
Holders, Note Holders or any of the Other Shareholders who has requested
inclusion in such registration as provided above, disapproves of the terms of
the underwriting, then such Preferred Holder(s), Note Holder(s) or such Other
Shareholder(s) may elect to withdraw therefrom by written notice to the Company
and the managing underwriter. The securities so withdrawn shall thereupon be
withdrawn from registration.
(e) The Company may delay or postpone for up to 45 consecutive
days effecting a Series AB, Series C Demand Registration or Note Demand
Registration if the Company has delivered a written certificate to each Investor
stating that the Board, acting in good faith, has resolved that pursuit of such
Demand Registration during such 45-day period would be detrimental to the
Company and its shareholders; provided, however, that in the event of any such
postponement, the Initiating Stockholders shall be entitled to withdraw the
request for such Demand Registration and, if such request is withdrawn, such
request shall not count as a Demand Registration hereunder; and provided,
further, that the Company may not exercise its rights under this Section 2.1(e)
for more than a total 60 days in any eighteen month period.
6. Section 2.2(a) of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
(a) If the Company at any time (other than pursuant to Section
2.1) proposes to register any of its securities under the Securities Act for
sale to the public, whether for its own account or for the account of other
shareholders of the Company or both (except with respect to (i) an Initial
Public Offering, (ii) Registration Statements on Forms X-0, X-0 or any successor
to such forms, (iii) any Registration Statement including only securities issued
pursuant to a dividend reinvestment plan, (iv) a Registration Statement in which
the only securities to be registered are securities issuable upon conversion of
debt securities or other convertible securities which are also being registered
or (v) another form of Registration Statement not available for registering the
Registrable Securities for sale to the public), each such time the Company shall
promptly give written notice to the Preferred Holders and the Note Holders of
its intention to do so (each, a "Piggy-Back Notice"). Upon the written request
of the Requisite Series C Holders and/or Requisite Note Holders, received by the
Company within twenty (20) days after the date of delivery of a Piggy-Back
Notice, in accordance with Section 3.4, to register any or all of the
Registrable Securities held by the Series C Holders and/or Note Holders as
stated in such request, the Company shall use its best efforts to cause the
Registrable Securities as to which registration shall have been so requested to
be included in such Registration Statement. If the Registration Statement
relates to an underwritten public offering, the Company shall so advise the
Preferred Holders and the Note
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Holders as a part of a Piggy-Back Notice. In such event, the Preferred Holders'
and Note Holders' right to include Registrable Securities in such registration
shall be conditioned upon its participation in such underwriting to the extent
provided herein. The Preferred Holders and the Note Holders, if participating in
such distribution, shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for underwriting by the Company;
the terms of which shall be no less favorable to the Preferred Holders and the
Note Holders than the terms afforded therein to the Company.
7. Section 2.2(b)(ii) of the Agreement is deleted in its entirety and
the following substituted in lieu thereof:
(ii) second, if the Maximum Offering Size has not then been
exceeded, that number of securities proposed to be registered for the account of
the Series C Holders and the Note Holder, ratably between them treating them as
one class for the purpose of this clause (ii).
8. Section 2.2(c), (d) and (e) of the Agreement are deleted in their
entirety and the following substituted in lieu thereof:
(c) Any request by a Preferred Holder or Note Holder for
inclusion in any registration may be withdrawn, in whole or in part, at any time
prior to the effective date of the Registration Statement for such offering. No
request for inclusion of, nor the inclusion of, Registrable Securities by a
Series C Holder or Note Holder shall be deemed a Series C Demand Registration or
Note Demand Registration, as the case may be, that reduces the number of such
Series C Demand Registrations or Note Demand Registrations, as the case may be,
to which the Series C Holders or Note Holders, as the case may be, are entitled
hereunder.
(d) The Company shall have the right to terminate or withdraw
any registration contemplated under this Section 2.2 prior to the effectiveness
of such registration, whether or not the Series C Holders or Note Holders, as
the case may be, have elected to include securities in such registration.
(e) There shall be no limitation on the number of
registrations a Preferred Holder or Note Holder may participate in under this
Section 2.2, and any such participation shall not reduce the number of Series C
Demand Registrations or Note Demand Registrations, as the case may be, to which
the Series C Holders and Note Holders, respectively, are entitled hereunder.
9. Section 2.4(a), (b), (d), (h), (i), (j), (k) and (k) (as originally
numbered) of the Agreement are deleted in their entirety, the following is
substituted in lieu thereof and the existing clauses (l) and (m) are renumbered
to be (m) and (n), respectively:
(a) Prepare and file with the Commission a Registration
Statement on the applicable form with respect to such securities and use its
best efforts to cause such Registration Statement to become and remain effective
until the earlier of (i) the sale of all of the Registrable Securities covered
thereby and (ii) the first date when all Registrable Securities covered thereby
are eligible for sale under Rule 144(k) without regard to any volume or manner
of sale limitations; provided, however, that, as soon as practicable but in no
event later than five (5) Business Days before filing such Registration
Statement, any related prospectus or any amendment or supplement thereto (other
than any amendment or supplement made solely as a result of incorporation by
reference of documents filed with the Commission subsequent to the filing of
such Registration Statement), the Company shall furnish to the Preferred
Holders, the Note Holders and the underwriters, if any, copies of all such
documents proposed to be filed, which documents shall be subject to review by
the Preferred Holders, Note Holders and any such underwriters; the Company shall
not file any Registration Statement or amendment thereto or any
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prospectus or any supplement thereto (other than any amendment or supplement
made solely as a result of incorporation by reference of documents filed with
the Commission subsequent to the filing of such Registration Statement) to which
the managing underwriters of the applicable offering, if any, or either of the
Co-Lead Investors shall have reasonably objected in writing, within four (4)
Business Days after receipt of such documents, to the effect that such
Registration Statement or amendment thereto or prospectus or supplement thereto
does not comply in all material respects with the requirements of the Securities
Act and specifying in reasonable detail the reasons therefor (provided that the
foregoing shall not limit a Preferred Holder's or Note Holder's right to
reasonably object, within four (4) Business Days after receipt of such
documents, to any particular information that is to be contained in such
Registration Statement, amendment, prospectus or supplement and relates
specifically to such Preferred Holder and/or Note Holder, as the case may be,
including without limitation any information describing the manner in which the
Preferred Holder or Note Holder acquired such Registrable Securities and the
intended method of distribution of such Registrable Securities), and if the
Company is unable to file any such document due to the objections of such
underwriters or either of the Co-Lead Investors, the Company shall use its best
efforts to cooperate with such underwriters and either of the Co-Lead Investors
to prepare, as soon as practicable, a document that is responsive in all
material respects to the reasonable objections of either of the Co-Lead
Investors;
(b) Permit a single law firm designated by the Co-Lead
Investors to represent all of the Series C Holders, a single law firm designated
by the Requisite Note Holders to represent all of the Note Holders, and a single
law firm designated by the Requisite Series AB Holders to represent the Series
AB Holders, to review and comment on the Registration Statement which includes
their respective Registrable Securities and all amendments and supplements for a
reasonable period prior to filing and to respond to any reasonable objections
raised by such counsel;
(d) Furnish to the Preferred Holders, the Note Holders and to
each underwriter copies of the Registration Statement and each such amendment
and supplement thereto (together with all exhibits thereto) and the prospectus
included therein and any other prospectus filed under Rule 424 or Rule 434 under
the Securities Act as the Preferred Holders, the Note Holders and such
underwriter reasonably may request in order to facilitate the disposition of the
Registrable Securities covered by such Registration Statement;
(h) Immediately notify the Preferred Holders, the Note Holders
and each underwriter under such Registration Statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event which has resulted or would result in the
prospectus contained in such Registration Statement, as then in effect, to
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, in
light of the circumstances under which they were made, not misleading, and
promptly prepare and furnish to such Investor and underwriter an updated
prospectus;
(i) If the offering is underwritten, and at each Preferred
Holder's and Note Holder's request, use its best efforts to furnish on the date
that Registrable Securities are delivered to the underwriters for sale pursuant
to such registration (i) an opinion, dated such date, of counsel to the Company,
addressed to the underwriters, the Preferred Holders and the Note Holders, to
such effect as reasonably may be requested by the underwriters, and (ii) a
letter, dated such date, from the independent public accountants retained by the
Company, addressed to the underwriters and, if applicable, the Preferred Holders
and the Note Holders, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
Registration Statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information
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as to the period ending no more than five (5) Business Days prior to the date of
such letter) with respect to such registration as such underwriters reasonably
may request, and deliver copies of such letter to the Investor;
(j) For the purpose of participating in any Registration
Statement, upon reasonable notice and at reasonable times during normal business
hours, make available for inspection by the Preferred Holders, the Note Holders,
any underwriter participating in any distribution pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the Preferred
Holders or the Note Holders or such underwriter, reasonable access to all
financial and other records, pertinent corporate documents and properties of the
Company, as such parties may reasonably request, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any of the Preferred Holders, the Note Holders, such underwriter, attorney,
accountant or agent in connection with such Registration Statement; provided,
however, the Company shall neither disclose the existence or content of any
material, non-public information concerning the Company at a time when
possession of such information by a Preferred Holder or Note Holder would, under
applicable law, prohibit the Preferred Holder or Note Holder from trading in the
Company's securities;
(k) Notify the Preferred Holders and the Note Holders (i) when
the prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to such Registration Statement or any post-effective
amendment, when the same has become effective, such notice to be given no later
than 9:00 a.m. (New York time) of the morning on the Business Day immediately
after the declaration of effectiveness by the Commission, (ii) immediately of
any request by the Commission for amendments or supplements to such Registration
Statement or to amend or supplement such prospectus or for additional
information, (iii) immediately of the issuance by the Commission of any stop
order suspending the effectiveness of such Registration Statement or the
initiation of any proceeding for that purpose and (iv) immediately of the
suspension of the qualification of securities covered by such registration for
offering or sale in any jurisdiction, or of the initiation of any proceeding for
any of such purposes;
(k) Take such other actions as the Preferred Holders, the Note
Holders or the underwriters reasonably request in order to expedite or
facilitate the disposition of the Registrable Securities, including, without
limitation, preparing for, and participating in, such number of "road shows" and
all such other customary selling efforts as the underwriters reasonably request
in order to expedite or facilitate such disposition;
10. Section 2.5 of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
2.5 Expenses. The Company shall bear all reasonable expenses
incurred in complying with Sections 2.1, 2.2 and 2.4, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for the Company,
fees and expenses (including counsel fees) incurred in connection with complying
with state securities or "blue sky" laws, reasonable fees and disbursements of
one law firm designated by the Co-Lead Investors, one law firm designated by the
Note Holders and one law firm designated by the Series AB Holders, of transfer
agents and registrars and costs of any insurance which might be obtained by the
Company with respect to the offering by the Company.
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11. Section 2.6(a) and (b) of the Agreement are deleted in their
entirety and the following substituted in lieu thereof:
(a) The Company shall indemnify and hold harmless, to the
fullest extent permitted by law, each Preferred Holder, Note Holder and its
respective Affiliates and the directors, officers, employees, investors,
partners and agents of each Preferred Holder, Note Holder and its respective
Affiliates, from and against any and all losses, claims, damages, liabilities
and expenses (including without limitation reasonable attorney fees and
disbursements and other expenses incurred in connection with investigating,
preparing or defending any action, claim or proceeding, pending or threatened
and the costs of enforcement hereof) (collectively, "Losses") to which any such
Person may become subject, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement covering any Registrable Securities, any related prospectus or
preliminary prospectus, or any amendment or supplement thereto, or any omission
or alleged omission to state in any thereof a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus or prospectus supplement, in light of the circumstances under which
they were made) not misleading; provided, however, that the Company will not be
liable in any such case to the extent any Losses arise out of or are based upon
an untrue statement of a material fact or an omission to state a material fact
in such Registration Statement, prospectus, preliminary prospectus, amendment or
supplement, as the case may be, made or omitted, as the case may be, in express
reliance upon and in strict conformity with written information furnished to the
Company by the Preferred Holder or Note Holder expressly for use therein who is
requesting such indemnification. This indemnity is in addition to any liability
that the Company may otherwise have. The Company shall also indemnify any
underwriters of the Registrable Securities, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution and
their officers and directors and each Person who controls such underwriters or
other Persons (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Preferred Holder, Note
Holder and its respective Affiliates as described above, if so required by the
underwriting agreement entered into in connection with the registration of such
Registrable Securities.
(b) In connection with any Registration Statement covering
Registrable Securities, each Preferred Holder and Note Holder whose Registrable
Securities were included in such Registration Statement shall furnish to the
Company in writing such information with respect to the Preferred Holder or the
Note Holder as the Company reasonably requests for use in connection with such
Registration Statement, any related Prospectus or preliminary prospectus, or any
amendment or supplement thereto, and shall indemnify, to the fullest extent
permitted by law, the Company, the Company's directors, officers, employees and
agents, each Person who controls the Company (within the meaning of the
Securities Act), against all Losses arising out of or based upon any untrue
statement of a material fact contained in any Registration Statement covering
any Registrable Securities, any related Prospectus or preliminary prospectus, or
any amendment or supplement thereto, or any omission to state in any such
prospectus, amendment or supplement, a material fact required to be stated
therein or necessary to make the statements therein (in the case of a prospectus
or prospectus supplement, in light of the circumstances under which they were
made) not misleading, in each case to the extent, and only to the extent, that
the Losses arise out of or are based upon an untrue statement of a material fact
or an omission to state a material fact in such Registration Statement or in
such related Prospectus, preliminary prospectus, amendment or supplement, as the
case may be, made or omitted, as the case may be, in express reliance upon and
in strict conformity with written information furnished to the Company by the
Preferred Holder or Note Holder expressly for use therein. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Preferred
Holder's or Note Holder's indemnification obligation exceed the dollar amount of
the proceeds actually received by such Preferred Holder or Note Holder from the
sale of the Registrable Securities under the Registration Statement giving rise
to such obligation.
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12. Section 2.6(d) of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
(d) (i) If the indemnification provided for in this Section
2.6 from the Indemnifying Party is unavailable to an Indemnified Person
hereunder or is inadequate in respect of any Losses for which indemnification is
provided under this Section 2.6, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Person, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party, on
the one hand, and Indemnified Person(s), on the other hand, in connection with
the actions that resulted in such Losses, as well as any other relevant
equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Person 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 to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Persons, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Losses referred to above shall be
deemed to include, subject to the limitations set forth in Section 2.6(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.6(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in Section 2.6(d)(i).
Notwithstanding any other provision hereof, in no event shall the Investor's
contribution obligation exceed the excess of (A) the dollar amount of the
proceeds received by the Investor upon the sale of the Registrable Securities
giving rise to such contribution obligation over (B) the dollar amount of any
damages that the Preferred Holder or Note Holder has otherwise been required to
pay by reason of the untrue or alleged untrue statement or omission or alleged
omission giving rise to such obligation. 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) If indemnification is available under this Section 2.6,
the Indemnifying Parties shall indemnify each Indemnified Person to the fullest
extent provided in Section 2.6(a) and Section 2.6(b) without regard to the
relative fault of said Indemnifying Party or Indemnified Person or any other
equitable consideration provided for in this Section 2.6(d).
(iv) If any provision of an indemnification or contribution
clause in an underwriting agreement or agency agreement executed by or on behalf
of the Investor differs from a provision in this Section 2.6, such provision in
the underwriting agreement shall determine the Investor's rights in respect
thereof.
13. Section 2.8(b) of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
(b) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Article II that each Preferred
Holder or Note Holder, as the case may be, furnish to the Company in writing
such information regarding such Preferred Holder or Note Holder, as the case may
be, the Registrable Securities held by it and the intended method of disposition
of such securities as shall be required to effect the registration thereof.
- 9 -
14. Section 2.9 of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
2.9 Additional Registration Rights. As of the date hereof,
neither the Company nor any of its security holders (other than as set forth on
Schedule 2.9 attached hereto) has any right to include securities of the Company
in a Registration Statement other than the Registrable Securities, and the
Company shall not, after the date hereof, enter into any agreement providing any
rights to be included with a Registration Statement to any of its security
holders or potential security holders, without the prior written consent of the
Requisite Series C Holders and the Requisite Note Holders. Until after the
effective date of a Registration Statement which includes Registrable Securities
owned by Series C Holders and Note Holders, the Company shall not file any other
Registration Statement solely with respect to shares to be offered by the
Company or any Series AB Holder, including, without limitation, a Registration
Statement on Form X-0, X-0, X-0 or S-8 or any successor form to any of the
foregoing, without the consent of the Requisite Series C Holders and the
Requisite Note Holders.
15. Section 3.1 of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
3.1 Successors and Assigns. This Agreement may not be assigned
by a party hereto without the prior written consent of the Company or Cerberus,
as applicable, and, if such assignment materially adversely affects the Series
AB Holders, the Requisite Series AB Holders; provided, however, that a Preferred
Holder and a Note Holder may assign its rights and delegate its duties hereunder
in whole or in part, without the prior written consent of any other party, to an
Affiliate and to any Person to whom such Preferred Holder or Note Holder, as the
case may be, transfers any of the Registrable Securities, provided, that, no
such assignment shall be effective or confer any right on any such assignee
unless, prior to such assignment, the assignee agrees in writing that such
assignee will be bound by all provisions binding on such Preferred Holder or
Note Holder, as the case may be. The provisions of this Agreement shall inure to
the benefit of and be binding upon the respective permitted successors and
assigns of the parties. Except for any other provisions of this Agreement
expressly to the contrary, nothing in this Agreement, express or implied, is
intended to confer 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.
16. Section 3.6 of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
3.6 Amendments and Waivers. This Agreement shall not be
amended without the prior written consent of (i) the Requisite Series C Holders
and the Requisite Note Holders and (ii) if such amendment materially adversely
affects the Series AB Holders, the Requisite Series AB Holders. 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 (i) the Requisite Series C
Holders and the Requisite Note Holders and (ii) if such amendment, action or
omission to act materially adversely affects the Series AB Holders, the
Requisite Series AB Holders.
17. Section 3.7 of the Agreement is deleted in its entirety and the
following substituted in lieu thereof:
3.7 Publicity. No public release or announcement concerning
the transactions contemplated by this Agreement shall be issued by the Company,
any of the Preferred Holders or Note Holders without, in the case of a release
or announcement by any of the Preferred Holders or the Note
- 10 -
Holders, the prior written consent of the Company, and, in the case of a release
or announcement by the Company, prior written consent of the Requisite Series C
Holders and the Requisite Note Holders, which in each case, shall not be
unreasonably withheld; provided, however, in the case of any release or
announcement that may be required by law, such release or announcement may be
made without prior consent, but the Company or the Requisite Series C Holders or
the Requisite Note Holders, as the case may be, shall allow the other, to the
extent reasonably practicable in the circumstances, reasonable time to comment
on such release or announcement in advance of its dissemination.
18. Except as expressly set forth in this Amendment, the Agreement is
ratified and confirmed, shall remain in full force and effect and shall not be
altered, amended or modified.
19. In accordance with Section 3.6 of the Agreement, this Amendment is
executed by the Requisite Series C Holders and the Requisite AB Holders.
20. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York without regard to the choice of
law principles thereof. Each of the parties hereto irrevocably submits to the
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may be served on
each party hereto anywhere in the world by the same methods as are specified for
the giving of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. THE COMPANY AND EACH OF THE INVESTORS, SERIES A HOLDERS,
SERIES B HOLDERS AND THE NOTE HOLDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO OR ARISING OUT OF
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
21. Except as expressly provided herein and therein, the obligations of
each Note Holder under this Amendment and the Agreement are several and not
joint with the obligations of any other Note Holder and no Note Holder shall be
responsible in any way for the performance of the obligations of any other Note
Holder under this Amendment or the Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 11 -
[COMPANY SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 to Registration Rights Agreement or caused this Amendment to be executed by
their duly authorized representatives, as of the date first written above.
THE COMPANY:
MOLECULAR INSIGHT PHARMACEUTICALS, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name:
Title:
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, LLC,
its General Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx
Managing Director
Address:
Cerberus Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
Fax: (000) 000-0000
and
Cerberus Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx Xxxxx
Fax: (000) 000-0000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
Siemens Venture Capital
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: President & CEO; CFO
Address: Siemens Venture Capital
Xxxxxxxxxxxxxxxxxx 0
X-00000 Xxxxxxx
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
Tudor Proprietary Trading, L.L.C.
c/o Tudor Investment Corporation
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
Altar Rock Fund L.P.
c/o Tudor Investment Corporation
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: /s/ Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
The Raptor Global Portfolio Ltd.
c/o Tudor Investment Corporation
00 Xxxxx Xxxxx. 0xx Xxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
Tudor BVI Futures, Ltd.
c/o Tudor Investment Corporation
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
Emigrant Capital Corporation
---------------------------------------
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Address: 0 Xxxx 00xx XX.
------------------------------
8th Floor
------------------------------
Xxx Xxxx, XX 00000
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
American Durham, L.P.
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Managing Principal
Address: 000 0xx Xxx.
00xx Xxxxx
Xxx Xxxx, XX 00000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
International Durham, Ltd.
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Managing Principal
Address: 000 0xx Xxx.
00xx Xxxxx
Xxx Xxxx, XX 00000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
MedCap Master Fund, L.P.
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Managing Member
Address: 000 Xxxxx Xxxxxx, #000
Xxx Xxxxxxxxx, XX 00000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
MedCap Partners L.P.
---------------------------------------
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Managing Member
Address: 000 Xxxxx Xxxxxx, #000
------------------------------
Xxx Xxxxxxxxx, XX 00000
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Advisor
Address: 000 Xxxx Xxxxxx
------------------------------
Xxx Xxxx, XX 00000
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES C HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES C HOLDER:
[ILLEGIBLE]
---------------------------------------
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Trustee
Address: [ILLEGIBLE]
------------------------------
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
[ILLEGIBLE]
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES B HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1 to
Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES B HOLDER:
CEREBUS PARTNERS, L.P.
By: Cerebus Associates, LLC,
its General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxx
Managing Director
Address:
Cerebus Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
Fax: (000) 000-0000
and
Cerebus Parnters, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx Xxxxx
Fax: (000) 000-0000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
[SERIES B HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES B HOLDER:
Xxxxxxxxx Xxxxx
---------------------------------------
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------
Name:
Title:
Address: 000 Xxxx 00xx Xxxxxx
------------------------------
Xxx Xxxx, XX 00000
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES A HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES A HOLDER:
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name:
Title:
Address:
------------------------------
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES A HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES A HOLDER:
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name:
Title:
Address:
------------------------------
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES A HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES A HOLDER:
[ILLEGIBLE]
---------------------------------------
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Trustee
Address: [ILLEGIBLE]
------------------------------
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
[ILLEGIBLE]
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES A HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES A HOLDER:
Xxxxxxxxx Investors LLC
---------------------------------------
By: /s/ L. Xxxxxxx Xxxxxxxxx
------------------------------------
Name: L. Xxxxxxx Xxxxxxxxx
Title: Manager
Address: [ILLEGIBLE]
------------------------------
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[SERIES A HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF SERIES A HOLDER:
Xxxxxxxxx Investment Partners, LC.
---------------------------------------
By: /s/ L. Xxxxxxx Xxxxxxxxx
------------------------------------
Name: L. Xxxxxxx Xxxxxxxxx
Title: Managing Shareholder
Address: [ILLEGIBLE]
------------------------------
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
CERBERUS PARTNERS, L.P.
---------------------------------------
By: Cerberus Associates, LLC,
its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Address: Cerberus Partners, L.P.
------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
------------------------------
Xxx Xxxx, Xxx Xxxx 00000
------------------------------
Attn: Xx. Xxxx X. Xxxxxxx
------------------------------
Fax: (000) 000-0000
and
Cerberus Partners, L.P.
------------------------------
299 Park Avenue, 22nd Floor
------------------------------
Xxx Xxxx, Xxx Xxxx 00000
------------------------------
Attn: Xx. Xxxxxx Xxxxx
------------------------------
Fax: (000) 000-0000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
Xxxxxxxxxx Xxxxxxx PC
---------------------------------------
00 Xxxxxxxxxx Xxxxxx
---------------------------------------
Xxxxxxxx, XX 00000
---------------------------------------
Attn: Xxxxxx X. Xxxxxx, Esq.
---------------------------------------
Fax: (000) 000-0000
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
Beaver Creek Fund Ltd.
---------------------------------------
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Address: 0000 Xxx Xxxx Xxxxx, Xxxxx 000
------------------------------
ST. Xxxxxx, USVI 00802
------------------------------
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
Ahab International, Ltd.
---------------------------------------
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: President, Ahab Capital Management, Inc.
Investment Advisor, Ahab International, Ltd.
Address: First Commercial Centre
2nd Floor, Box F-44656
Freeport, Grand Bahamas
The Bahamas
Mailing Address: c/o Ahab Capital Management, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
Ahab Partners L.P.
---------------------------------------
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Member, Pequod LLC
General Partner, Ahab Partners, L.P.
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
American Durham, L.P.
---------------------------------------
By:
/s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Managing Principal
Address:
000 0xx Xxx.
------------------------------
00xx Xxxxx
------------------------------
X.X., XX 00000
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
International Durham Ltd.
---------------------------------------
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Managing Principal
Address:
000 0xx Xxx.
------------------------------
22nd Floor
------------------------------
XX, XX 00000
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
Institutional Benchmark
Series (Master Feeder) Limited
---------------------------------------
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
Title: Authorized Signatory
Address: 000 Xxxxx Xxxxxx
------------------------------
22nd Floor
------------------------------
Xxx Xxxx, XX 00000
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
[NOTE HOLDER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to Registration Rights Agreement or caused this Amendment to be executed by its
duly authorized representative, as of the date first written above.
NAME OF NOTE HOLDER:
Emigrant Capital Corporation
---------------------------------------
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Address:6 East 43rd St.,
------------------------------
8th Floor
------------------------------
Xxx Xxxx, XX 00000
------------------------------
With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
---------------------------------------
---------------------------------------
---------------------------------------
