EXHIBIT 4.3
XXXXX LABORATORIES, INC.
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of July 9, 2001, by and among Xxxxx
Laboratories, Inc., a Texas corporation (the "Company") and the Persons listed
on the signature page(s) attached hereto (together with their successors,
assigns and transferees, the "Stockholders")
Each of the Stockholders is either an existing holder of Series A
Preferred Stock, $0.01 par value per share, of the Company and/or is a party to
a Series B Preferred Stock Purchase Agreement of even date herewith (the
"Purchase Agreement"). In order to induce the Stockholders who are parties to
the Purchase Agreement to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement of even date herewith. Unless otherwise defined in paragraph
8 hereof or elsewhere herein, each capitalized term used herein has the meaning
given such term in such Purchase Agreement.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. Subject to the terms set forth
herein, at any time after the Company has completed a public offering of its
equity securities registered under the Securities Act of 1933, as amended (the
"Securities Act"), the holders of Registrable Securities may request
registration under the Securities Act of all or part of their Registrable
Securities on Form S-1 or any similar long-form registration (each, a "Long-Form
Registration") and on Form S-2 or S-3 or any similar short-form shelf
registration (each, a "Short-Form Registration"). All registrations requested
pursuant to this paragraph 1(a) are referred to herein as "Demand
Registrations." Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to paragraph 1(d) below, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice.
(b) Long-Form Registrations. EGI (or any affiliates,
successor, assign or transferee of EGI) and Perseus-Xxxxx Biopharmaceutical
Fund, L.P. ("PSBF") shall each be entitled to request up to two Long-Form
Registrations, Marquette Venture Partners III, L.P. ("Marquette Investor") (or
any successor, assign or transferee of Marquette Investor), Xxxxxx-Xxxxxxxxx and
Xxxxxxx Xxxxx Ventures L.P. 2001 ("Xxxxxxx Xxxxx") (collectively, the "Financial
Sponsors") shall each be entitled to request one Long-Form Registration and
Talon Opportunity Fund, L.P. ("Talon") shall be entitled to request one
Long-Form Registration and the holders of not less than 1,081,031
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shares of Registrable Securities issued pursuant to the Series A Preferred Stock
Purchase Agreement dated as of November 30, 2000 other than Talon shall be
entitled to one Long-Form Registration. A registration shall not count as one of
the permitted Long-Form Registrations until it has become effective, and no
registration shall count as one of the permitted Long-Form Registrations unless
the holders of Registrable Securities are able to register and sell at least 90%
of the aggregate Registrable Securities requested to be included in such
registration; provided however, any Registrable Securities that could otherwise
have been sold pursuant to an effective Long-Form Registration but are
voluntarily withdrawn from such registration (other than a withdrawal based on
or in connection with (i) material adverse information concerning the Company of
which such holders were not aware at the time of such request, (ii) the
interference of a registration statement related to such offer, sale or
distribution of Registrable Securities by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason or (iii) in connection with an event contemplated by Section 4(b)), shall
be deemed, for the purpose of Section 8(a) below, as having been sold under an
effective registration. The Company shall pay all Registration Expenses in
connection with any registration initiated as one of the Long-Form Registrations
whether or not it has become effective and whether or not such registration has
counted as one of the permitted Long-Form Registrations. All Long-Form
Registrations shall be underwritten registrations. The Company agrees to use its
best efforts to keep the Long-Form Registration continuously effective for the
lesser of 180 days or until all Registrable Securities covered by such Long-Form
Registration have been sold.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of at least 25%
of the outstanding Registrable Securities then held by the Stockholders shall be
entitled to request one Short-Form Registration for an offering to be made on a
continuous basis pursuant to Rule 415 of the Securities Act (or any successor or
similar provision then in effect). After the Company has become subject to the
reporting requirements of the Securities Exchange Act, the Company shall use its
best efforts to make Short-Form Registration available for the sale of
Registrable Securities. A registration shall not count as the one permitted
Short-Form Registration until it has become effective, and no registration shall
count as the one permitted Short-Form Registration unless the holders of
Registrable Securities are able to register and sell at least 82.5% of the
aggregate Registrable Securities requested to be included in such registration;
provided however, any Registrable Securities that could otherwise have been sold
pursuant to an effective Short-Form Registration but are voluntarily withdrawn
from such registration (other than a withdrawal based on or in connection with
(i) material adverse information concerning the Company of which such holders
were not aware at the time of such request, (ii) the interference of a
registration statement related to such offer, sale or distribution of
Registrable Securities by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any reason or
(iii) in connection with an event contemplated by Section 4(b)), shall be
deemed, for the purpose of Section 8(a) below, as having been sold under an
effective registration. The Company shall pay all Registration Expenses in
connection with any registration initiated as a Short-Form Registration whether
or not it has become effective and whether or not such registration has counted
as the one permitted Short-Form Registration. The Company agrees to use its best
efforts to keep the Short-Form Registration with respect to the Registrable
Securities continuously effective for a period expiring on the earlier of (i)
the date on which all of the Registrable Securities covered by the Short-Form
Registration have
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been sold pursuant thereto and (ii) the date on which (A) all Registrable
Securities held by holders who are not affiliates of the Company, in the opinion
of counsel for the Company, which counsel shall be reasonably acceptable to such
holders, are eligible for sale pursuant to Rule 144(k) under the Securities Act
and (B) all Registrable Securities, held by each holder who is an affiliate of
the Company, in the opinion of counsel for the Company, which counsel shall be
reasonably acceptable to such holder, are eligible for sale pursuant to Rule 144
under the Securities Act and could be sold in one transaction in accordance with
the volume limitations contained in Rule 144(e)(1)(i) under the Securities Act.
(d) Priority on Demand Registrations. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that, in their opinion, the number of Registrable Securities and other
securities requested to be included in such offering exceeds the number of
securities that can be sold in an orderly manner in such offering within a price
range acceptable to the holders of a majority of the Registrable Securities
initially requesting registration, the Company shall include in such
registration, prior to the inclusion of any securities which are not Registrable
Securities, (i) first, the number of Registrable Securities of the holders
initially requesting registration requested to be included which in the opinion
of such underwriters can be sold in an orderly manner within the price range of
such offering, pro rata among the respective holders thereof on the basis of the
amount of Registrable Securities owned by each such holder, (ii) second, the
number of Registrable Securities of the other holders requested to be included
which in the opinion of such underwriters can be sold in an orderly manner
within the price range of such offering, pro rata among the respective holders
thereof on the basis of the amount of Registrable Securities owned by each such
holder, and (iii) third, the number of other securities requested to be included
which, in the opinion of such underwriters, can be sold in an orderly manner
within the price range of such offering, pro rata among the Company and the
respective holders thereof on the basis of the amount of securities owned by the
Company and each such holder. To the extent more than 17.5% of the Registrable
Securities so requested to be registered by the holders initially requesting
registration are excluded from an offering under Section 1(b) ("Section 1(b)
Reload Event"), then such holder shall have the right to one additional Demand
Registration under Section 1(b) upon the occurrence of each Section 1(b) Reload
Event. To the extent more than 17.5% of the Registrable Securities so requested
to be registered by all of the holders requesting registration are excluded from
an offering under Section 1(c) ("Section 1(c) Reload Event"), then such holders
shall have the right to one additional Demand Registration under Section 1(c)
upon the occurrence of each Section 1(c) Reload Event.
(e) Restrictions on Demand Registrations. The Company may
postpone for up to 60 days the filing or the effectiveness of a registration
statement for a Demand Registration if the Company's board of directors
determines in its good faith judgment (as certified to the holders by the Chief
Executive Officer of the Company) that such Demand Registration should not be
made or continued because it would materially interfere with any material
financing, acquisition, corporate reorganization or merger or other material
transaction involving the Company or any of its Subsidiaries; provided that in
such event, the holders of Registrable Securities initially requesting such
Demand Registration shall be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration shall not count as one of the
permitted Demand Registrations hereunder and the Company shall pay all
Registration Expenses in connection with such
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registration. The Company may delay a Demand Registration hereunder only once in
any 12-month period. The Company will not be obligated to effect any Demand
Registration within the 180-day period immediately following the effective date
of the Company's initial registered public offering or within the 90-day period
immediately following the effective date of any prior Demand Registration in
which the holder requesting registration was permitted to register Registrable
Securities in connection therewith and no more than 17.5% of the Registrable
Securities so requested to be registered by any holder were excluded from such
offering.
(f) Selection of Underwriters. The holders of a majority of
the Registrable Securities included in any Demand Registration shall have the
right to select the investment banker(s) and manager(s) to administer any such
Demand Registration, subject to the approval of the Company, which approval
shall not be unreasonably withheld.
(g) Other Registration Rights. In connection with a Short-Form
Registration, the Company may grant rights to other Persons to participate in
Piggyback Registrations so long as such rights are subordinate to the rights of
the holders of Registrable Securities with respect to such Piggyback
Registrations as provided in paragraphs 2(c) and 2(d) hereof.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
the Company's initial registered public offering, a Demand Registration or a
registration on Form S-4 or S-8 or any successor or similar forms) and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company shall give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration and shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 15 days after receipt of the Company's notice.
(b) Piggyback Expenses. The Company shall pay all Registration
Expenses in all Piggyback Registrations (whether such Registration Expenses are
incurred by the Company or the holders of Registrable Securities).
(c) Priority on Primary Registration. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) first, the securities the Company proposes to sell and
(ii) second, the Registrable Securities requested to be included in such
registration and any other securities eligible to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares owned by each such holder.
(d) Priority on Secondary Registration. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing
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that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within the price range of the offering, the Company shall include in
such registration (i) first, the securities requested to be included therein by
the holders requesting such registration, pro rata among the holders of such
securities on the basis of the number of securities owned by each such holder,
and (ii) second, the Registrable Securities requested to be included in such
registration and any other securities eligible to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares owned by each such holder.
(e) Selection of Underwriters. If any Piggyback Registration
is an underwritten offering, the selection of investment banker(s) and
manager(s) for the offering shall be made by the Company and must be approved by
the holders of a majority of the Registrable Securities included in such
Piggyback Registration. Such approval shall not be unreasonably withheld.
3. Holdback Agreements.
(a) Each Stockholder, in the event the Company is issuing its
common shares to the public in an underwritten offering, agrees, if requested by
the managing underwriter or underwriters for such underwritten offering in
writing and if such underwriters obtain a similar agreement from all officers,
directors and holders of more than 5% of the Company's outstanding Common Stock
(who are not already parties to this Agreement), not to effect any public sale
or distribution for such Registrable Securities (except for a sale, after the
expiration of the 180-day period following effectiveness of the Company's
initial registered public offering, pursuant to Rule 144 or any similar
provision then in force) under the Securities Act, during the 90-day, or if in
connection with the Company's initial public offering of its common shares the
180-day, period beginning on, the effective date of such underwritten offering;
provided, however, that no holder shall be required to refrain (i) from selling
Registrable Securities more than once in any 12-month period or (ii) from
transferring securities to an affiliate of such holder.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 90-day period
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree,
and (ii) shall use its reasonable best efforts to cause each director or officer
of the Company and each person owning 5% or more of the Company's outstanding
Common Stock to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
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(c) Each Stockholder agrees not to effect any public sale or
distribution of its Registrable Securities under the Securities Act, during the
90-day period beginning on, the effective date of any underwritten Demand
Registration, except as part of such Demand Registration in which the holder
requesting registration was permitted to register Registrable Securities in
connection therewith and no more than 17.5% of the Registrable Securities so
requested to be registered by any holder were excluded from such offering;
provided, however, that no holder shall be required to refrain from transferring
securities to an affiliate of such holder.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
which shall (i) be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
holders thereof and (ii) comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the United Stated Securities and Exchange Commission ("SEC") to be
included therein or if permitted by the rules and forms of the SEC, incorporate
such financial statements therein by reference. The Company shall use its best
efforts to cause such registration statement to become effective within 90 days
of the request for registration (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the holders of a majority of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to the review
and comment of such counsel);
(b) notify in writing each holder of Registrable Securities of
the effectiveness of each registration statement filed hereunder and subject to
the last three sentences of this Section 4(b) hereof, (i) prepare and file with
the SEC such amendments to any Demand Registration statement as may be necessary
to keep any such Demand Registration statement effective for the period
specified herein; (ii) cause the prospectus to such registration statement to be
amended or supplemented as required and to be filed as required by Rule 424 or
any similar rule that may be adopted under the Securities Act; (iii) respond as
promptly as practicable to any comments received from the SEC with respect to
any Long-Term or Short-Term Registration statement or any amendment thereto; and
(iv) comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling holders thereof. Notwithstanding anything to the
contrary contained herein, if a Short-Form Registration is used, then the
Company shall not be required to take any of the actions described in clauses
(i), (ii) or (iii) in this Section 4(b), with respect to each holder of
Registrable Securities to the extent that the Company is in possession of
material non-public information that it deems advisable not to disclose or is
engaged in active negotiations or planning for a merger or acquisition or
disposition transaction and it delivers written notice to each such holder of
Registrable Securities to the effect that such holder may not make offers or
sales under the Short-Form Registration for a period not to exceed the earlier
of 60 days from the date of such
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notice and the Company's first Exchange Act filing after such notice is sent by
the Company; provided, however, that the Company may deliver only one such
notice within any twelve-month period. The holder shall promptly provide to the
Company such information as the Company reasonably requests in order to identify
such holder and the method of distribution in a post-effective amendment to the
Short-Form Registration statement or a supplement to its prospectus. Such holder
also shall notify the Company in writing upon completion of such offer or sale
or at such time as such holder no longer intends to make offers or sales under
the Short-Form Registration statement;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus or supplement) and such other documents as such seller
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities, and to keep such registration or qualification effective
during the period such registration statement is to be kept effective, under
such other securities or blue sky laws or such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) promptly notify in writing each seller of such Registrable
Securities that has delivered a Registration Notice to the Company and, if
requested by such holder, promptly confirm in writing (i) when any amendment or
supplement to the prospectus relating to a Demand Registration has been filed
with the SEC, (ii) of the issuance by the SEC or any state securities authority
of any stop order suspending the effectiveness of the Registration Statement or
any part thereof or the initiation of any proceedings for that purpose, (iii) if
the Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, and (iv) of
the happening of any event during the period the Registration Statement is
effective as a result of which (A) such registration statement contains any
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
or (B) such prospectus as then amended or supplemented contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; and, at the request of any such seller, the
Company shall prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
registration statement or prospectus shall not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading;
(f) cooperate with the selling holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold; and enable certificates for such
Registrable Securities to be issued
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for such numbers of shares and registered in such names as the selling holders
may reasonably request at least two business days prior to any sale of
Registrable Securities;
(g) use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar securities
issued by the Company are then listed and, if not so listed, use its best
efforts to be listed on the National Association of Securities Dealers ("NASD")
automated quotation system ("NASDAQ"), and if listed on the NASD automated
quotation system, use its best efforts to secure designation of all such
Registrable Securities covered by such registration statement as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the SEC
or, failing that, to use its best efforts to secure NASDAQ authorization for
such Registrable Securities and, without limiting the generality of the
foregoing, to use its best efforts to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(i) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(j) subject to the receipt of a confidentiality agreement,
make available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter attorney, accountant or
agent in connection with such registration statement;
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months beginning with the first day of the Company's first
full calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(l) permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(m) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock
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included in such registration statement for sale in any jurisdiction, the
Company shall use its best efforts promptly to obtain the withdrawal of such
order; and
(n) furnish, at the request of any seller of Registrable
Securities on the date such securities are delivered to the underwriters for
sale pursuant to such registration or, if such securities are not being sold
through underwriters, on the date the registration statement with respect to
such securities becomes effective, an opinion, dated such date, of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering such legal
matters with respect to the registration in respect of which such opinion is
being given as the underwriters, if any, and such seller may reasonably request
and are customarily included in such opinions.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, expenses and fees of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accounts, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), shall be borne as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASDAQ.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Registrable
Securities included in such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration and for the reasonable fees
and disbursements of each additional counsel retained by any holder of
Registrable Securities for the purpose of rendering a legal opinion on behalf of
such holder in connection with any underwritten Demand Registration or Piggyback
Registration and any due diligence investigation in connection with such
registration and participation in the preparation of any registration statement.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
6. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each holder of Registrable Securities and its
partners,
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affiliates, officers, directors and each Person, if any, who controls any such
holder within the meaning of Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to which such holder, partner,
affiliate, officer, director or controlling Person may become subject
under the Securities Act or otherwise (A) that arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement relating to the holder's
Registrable Securities or any amendment thereto, or 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 or (B)
that arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any prospectus or any amendment
or supplement thereto, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or incurred in connection with any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or alleged untrue statement or any omission or alleged omission
contained in any registration statement relating to the holder's
Registrable Securities, if such settlement is effected with the written
consent of the Company; and
(iii) any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, in each case whether or not a party, or any claim
whatsoever based upon any such untrue statement or alleged untrue
statement or omission or alleged omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
(iv) any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the Company
in connection with any registration, qualification, or compliance of the
Registrable Securities or any other capital stock of the Company;
provided, however, that the indemnity provided pursuant to this Section 6(a)
shall not apply with respect to any loss, liability, claim, damage or expense
that arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by such holder
expressly for use in any registration statement relating to the holder's
Registrable Securities or any amendment thereto or the prospectus or any
amendment or supplement thereto.
(b) Indemnification by Holders. Each holder severally, and not
jointly, agrees to indemnify and hold harmless the Company and the other selling
holders of Registrable Securities, and each of their respective partners,
affiliates, directors and officers (including each director and officer of the
Company who signed the
- 10 -
Registration Statement), and each Person, if any, who controls the Company or
any other selling holder within the meaning of Section 15 of the Securities Act,
to the same extent as the indemnity contained in Section 6(a) hereof, but only
insofar as such loss, liability, claim, damage or expense arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any registration statement relating to Registrable
Securities or any amendment thereto or the prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such selling holder for use therein relating to the
holder's status as a selling security holder. Notwithstanding the foregoing, the
indemnification obligations under this subparagraph (b), and the contribution
obligations under subparagraph (d), of an indemnifying holder of Registrable
Securities shall be limited to the amount of net proceeds received by such
holder upon the sale of Registrable Securities under the registration statement
to which the indemnification obligations relate.
(c) Conduct of Indemnification Proceedings. Each indemnified
party shall give reasonably prompt notice to each indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party (i) shall not
relieve it from any liability which it may have under the indemnity agreement
provided in Section 6(a) or (b) above, except to the extent and only to the
extent it did not otherwise learn of such action and the lack of notice by the
indemnified party materially prejudices the indemnifying party or results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
shall not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided under
Section 6(a) or (b) above. After receipt of such notice, the indemnifying party
shall be entitled to participate in and, at its option, jointly with any other
indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by such
indemnifying party and approved by the indemnified party, which approval shall
not be unreasonably withheld; provided, however, that, if the defendants in any
such action or proceeding include both the indemnified party and the
indemnifying party and the indemnified party reasonably determines, upon advice
of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to one separate counsel, the reasonable fees and
expenses of which shall be paid by the indemnifying party. If the indemnifying
party does not assume the defense of any such action or proceeding, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel (which
shall be limited to a single law firm) for the indemnified party. In such event,
however, the indemnifying party will not be liable for any settlement effected
without the written consent of such indemnifying party. If the indemnifying
party assumes the defense of any such action or proceeding in accordance with
this paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with such action or proceeding except as set forth in the proviso in the second
sentence of this Section 6(c).
(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 6 is for any reason held to be unenforceable although applicable in
accordance
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with its terms, the Company and the selling holders of Registrable Securities
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the selling holders of Registrable Securities, in such proportion as
is appropriate to reflect the relative fault of and benefits to the Company on
the one hand and such selling holders on the other (in such proportions that the
selling holders are severally, not jointly, responsible for the balance), in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits to the indemnifying party and
indemnified parties shall be determined by reference to, among other things, the
total proceeds received by the indemnifying party and indemnified parties in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether the
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 the
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The parties
hereto agree that it would not be just or equitable if contribution pursuant to
this Section 6(d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to this paragraph.
Notwithstanding the foregoing, 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. For purposes of this Section 6(d), each Person, if
any, who controls a holder of Registrable Securities within the meaning of
Section 15 of the Securities Act and partners, affiliates, directors and
officers of such holder shall have the same rights to contribution as such
holder, and each director of the Company, each officer of the Company who signed
the registration statement and each partner, affiliate or Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as the Company.
7. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements; provided
that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters (other than representations and warranties regarding
such holder, such holder's title to and authority to sell the Registrable
Securities and such holder's intended method of distribution) or to undertake
any indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in paragraph 6 hereof.
8. Definitions.
(a) "EGI" means EGI Fund (01) Investors, LLC, EGI-Fund (00)
Investors, LLC, and EGI-Fund (99) Investors, LLC.
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(b) "Registrable Securities" means (i) any shares of Common
Stock issued or issuable upon conversion of the Series A Preferred Stock or
Series B Preferred Stock (including Series B Preferred issuable upon exercisable
of warrants to purchase Series B Preferred); (ii) other shares of Common Stock
owned by the Financial Sponsors; and (iii) any Common Stock issued or issuable
with respect to the securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. Notwithstanding
the foregoing, the term Registrable Securities shall exclude (i) Common Stock
that has been disposed of under any effective registration statement, (ii)
Common Stock sold or otherwise transferred pursuant to Rule 144 under the
Securities Act, (iii) Common Stock that is held by holders who are not
affiliates of the Company that are eligible for sale pursuant to Rule 144(k)
under the Securities Act, and (iv) Common Stock held by each holder who is an
affiliate of the Company if all of such shares of Common Stock are eligible for
sale pursuant to Rule 144 under the Securities Act and could be sold in one
transaction in accordance with the volume limitations contained in Rule
144(e)(1)(i) under the Securities Act. For purposes of this Agreement, a Person
shall be deemed to be a holder of Registrable Securities whenever such Person is
known by the Company to have the right to acquire such Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected, and
such Person shall be entitled to exercise the rights of a holder of Registrable
Securities hereunder.
(c) "Series A Preferred Stock" shall mean those shares of the
Company's Series A Preferred Stock, $0.01 par value per share, issued pursuant
to the Company's Series A Preferred Stock Purchase Agreement dated as of May 26,
1999, October 3, 2000 and/or November 30, 2000.
(d) "Series B Preferred Stock" shall mean those shares of the
Company's Series B Preferred Stock, $0.01 par value per share, issued pursuant
to the Company's Series B Preferred Stock Purchase Agreement dated as of the
date hereof.
(e) "Xxxxxx-Xxxxxxxxx" means Xxxxxx-Xxxxxxxxx Capital Focus
III, L.P., TD Origen Capital Fund, L.P. and TD Lighthouse Capital Fund, L.P.
9. Miscellaneous
(a) No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement. The Company further represents that it is not a
party to any agreement other than this Agreement which grants registration
rights for the Company's securities to any Person (other than the Registration
Rights Agreement dated May 26, 1999, the Amended and Restated Registration
Rights Agreement dated as of October 3, 2000 and the Amended and Restated
Registration Rights Agreement dated as of November 30, 2000 each of which is
restated by this Agreement).
(b) Adjustments Affecting Registrable Securities. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would materially adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to
- 13 -
this Agreement or which would materially adversely affect the marketability of
such Registrable Securities in any such registration (which might include,
without limitation, effecting a stock split or a combination of shares).
(c) Remedies. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendment and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company, 60% of the outstanding shares of Common
Stock issued or issuable upon conversion of the Series A Preferred Stock and a
majority of the outstanding shares of Common Stock issued or issuable upon
conversion of the Series B Preferred Stock; provided that if such amendment or
waiver would adversely affect a holder or group of holders of Registrable
Securities in a manner different than any other holder or group of holders of
Registrable Securities, then such amendment or waiver will require the consent
of such holder of Registrable Securities or a majority of the Registrable
Securities held by such group of holders adversely affected. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(e) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts (any one of which may be by
facsimile), any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
(h) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
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(i) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(j) Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or sent by facsimile transmission (confirmed
by the facsimile operator). Such notices, demands and other communications shall
be sent to each holder of Registrable Securities at the address and/or facsimile
number indicated on the signature page hereto and to the Company at the address
and/or facsimile number indicated below:
Xxxxx Laboratories, Inc.
00000 Xxxxxxxxx Xxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
Or to such other address and/or facsimile number or to the attention of such
other person as the recipient party has specified by prior written notice to the
sending party.
(k) Joinder. Any purchaser of Registrable Securities must
become a party to this Agreement upon execution and delivery of a joinder
agreement between such purchaser and the holders of at least a majority of the
Registrable Securities (excluding the Registrable Securities purchased by such
purchaser).
(l) Certain Calculations. For purposes of this Agreement, any
and all rights exercisable by holders of a specified minimum percentage of
Registrable Securities shall be determined on an "as converted" basis. All
references to numbers of shares, per share price or other share amounts in this
Agreement shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Company occurring after
the date of this Agreement.
- 15 -
* * * * * *
- 16 -
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
XXXXX LABORATORIES, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Its: CEO
---------------------------------------
EXISTING STOCKHOLDERS:
EGI FUND (00) INVESTORS, L.L.C.
By: SZ Investments, L.L.C.
Its: Managing Member
By: Xxxx General Partnership, Inc.
Its: Managing Member
By: /s/ Xxxxxxx Xxxx
---------------------------------------
MARQUETTE VENTURE PARTNERS III, L.P.
By: Marquette III, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
/s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
XXXX X. XXXXX, XX.
/s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
XXXX X. XXXXX, XX.
/s/ Xxxxxx Xxx Xxxxxxxxx
--------------------------------------------
XXXXXX XXX XXXXXXXXX
- 17 -
XXXX X. XXXXX, XX. TRUST
By: /s/ Xx Xxxxxxx
---------------------------------------
Xx Xxxxxxx, Trustee
XXXXXX X. XXXXXXXXX TRUST
By: /s/ Xx Xxxxxxx
---------------------------------------
Xx Xxxxxxx, Trustee
XXXXXXXX X. BLACK TRUST
By: /s/ Xx Xxxxxxx
---------------------------------------
Xx Xxxxxxx, Trustee
XXXXX X. BLACK TRUST
By: /s/ Xx Xxxxxxx
---------------------------------------
Xx Xxxxxxx, Trustee
XXXXXX X. BLACK TRUST
By: /s/ Xx Xxxxxxx
---------------------------------------
Xx Xxxxxxx, Trustee
XXXXXXXX X. BLACK TRUST
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx, Trustee
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Xxxx X. Xxxxx, Xx., Trustee
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------
Xxxx Xxxxxxxxx, Trustee
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XXXXX X. BLACK TRUST
By: /s/ Xxxxxx Xxxxxxxxx
______________________________________
Xxxxxx Xxxxxxxxx, Trustee
By: /s/ Xxxx X. Xxxxx, Xx.
______________________________________
Xxxx X. Xxxxx, Xx., Trustee
By: /s/ Xxxx Xxxxxxxxx
______________________________________
Xxxx Xxxxxxxxx, Trustee
XXXXXX X. BLACK TRUST
By: /s/ Xxxxxx Xxxxxxxxx
______________________________________
Xxxxxx Xxxxxxxxx, Trustee
By: /s/ Xxxx X. Xxxxx, Xx.
______________________________________
Xxxx X. Xxxxx, Xx., Trustee
By: /s/ Xxxx Xxxxxxxxx
______________________________________
Xxxx Xxxxxxxxx, Trustee
/s/ A. Xxxx Xxxxxxxx
______________________________________
A. XXXX XXXXXXXX
/s/ Xxxxx Xxxxxxx
______________________________________
XXXXX XXXXXXX
XXXX XXXXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxxxxxx
______________________________________
Name: Xxxx Xxxxxxxxx
_______________________________
Title: General Partner
_______________________________
/s/ Xxxxx Xxxxx
______________________________________
XXXXX XXXXX
- 19 -
/s/ X.X. Xxxxxxxx
______________________________________
X.X. XXXXXXXX
/s/ Xxx Xxxxxxxx
______________________________________
XXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
______________________________________
XXXXX XXXXXXXX
/s/ Xxxxx Fine
______________________________________
XXXXX FINE
MJG PARTNERS, L.P.
By: /s/ Xxxx Xxxxxx
_______________________________________
Xxxx Xxxxxx Xxxxxx, Its General Partner
By: /s/ Xxxxx Xxxxxx
_______________________________________
Xxxxx Xxxxxx, Its General Partner
XXXXXX XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxx, Xx.
_______________________________________
Xxxx X. Xxxxx, Xx., Trustee
XXXXX XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxx, Xx.
_______________________________________
Xxxx X. Xxxxx, Xx., Trustee
XXXXXXXX XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxx, Xx.
_______________________________________
Xxxx X. Xxxxx, Xx., Trustee
- 20 -
AWK CAPITAL PARTNERS, L.P. (d.b.a.
XXXXXXXX CAPITAL PARTNERS, L.P.
By: AWK Capital Management, L.P.
(d.b.a. Xxxxxxxx Capital
Management, L.P.), its General
Partner
By: AWK, L.L.C., its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxx,
Its Manager
/s/ Xxxx Xxxxxxxxxx
-------------------------------
XXXX XXXXXXXXXX
/s/ Xxxx Xxxxx
-------------------------------
XXXX XXXXX
TALON OPPORTUNITY FUND, L.P.
By: Talon Partnership Management,
LLC, Its General Partner
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxx, a Member
- 21 -
PERSEUS-XXXXX BIOPHARMACEUTICAL FUND, L.P.
By: Perseus-Xxxxx Partners, LLC,
General Partner
By: SFM Participation, L.P., Member
By: SFM AH, Inc., General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Secretary
XXXXXXX XXXXX VENTURES L.P. 2001
By: Xxxxxxx Xxxxx Ventures LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------
Title: Vice President
------------------------
EGI-FUND (01) INVESTORS, L.L.C.
By: SZ Investments, L.L.C.
Its Managing Member
By: Xxxx General Partnership, Inc.
Its Managing Member
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxx
-----------------------------------
Title:Vice President
-----------------------------------
XXXXXX-XXXXXXXXX CAPITAL FOCUS III,
L.P.
By: Xxxxxx-Xxxxxxxxx Partners III, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
-----------------------------------
Title:Principal
-----------------------------------
- 22 -
FAWN CAPITAL PARTNERS
By:
________________________________________
By: /s/ Xxxxxxx X. Xxxx
________________________________________
Name: Xxxxxxx X. Xxxx
__________________________________
Title: Member
_________________________________
- 23 -
TD ORIGEN CAPITAL FUND, L.P.
By: TD II Regional Partners, Inc.
Its General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
________________________________________
Name: Xxxx X. Xxxxxxxxxx
___________________________________
Title: President
__________________________________
TD LIGHTHOUSE CAPITAL FUND, L.P.
By: TD II Regional Partners, Inc.
Its General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
________________________________________
Name: Xxxx X. Xxxxxxxxxx
___________________________________
Title: President
__________________________________
- 24 -
