exv4w3



 





Exhibit
4.3



EXECUTION
VERSION



AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT




          THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as
of this 16th day of November, 2007, by and among:





Molecular Insight Pharmaceuticals, Inc., a Massachusetts corporation
(the “Company”), the former 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 attached hereto;




The former 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 attached hereto;




The former 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 attached hereto;




The former holders (the “Note Holders”) of those certain
Convertible Promissory Notes in aggregate principal amount of
$15,400,000.00 and dated March 29, 2005 set forth on Schedule
D attached hereto; and




The Bond Warrant Holders (as defined below and together with the
Series A Holders, the Series B Holders, the Series C Holders, the
Common Holders and the Note Holders, each, an “Investor” and
collectively, the “Investors”) of those certain Bond Warrants
and dated of even date herewith set forth on Schedule E
attached hereto.



RECITALS:




          A. Pursuant to the terms of a certain Stock Purchase Agreement dated March 29, 2005 by and
among the Company, Cerberus Partners, L.P. and Medcap Partners, L.P., as the lead investors, and
the other Series C Holders signatory thereto (as amended, restated, supplemented or otherwise
modified to date, the “Stock Purchase Agreement”), the Company issued to the Series C
Holders an aggregate of up to 148,515 shares (the “Series C Preferred Shares”) of its
Series C Preferred Stock; and




          B. Pursuant to the Stock Purchase Agreement, the parties entered into this Agreement to set
forth, among other things, the rights of the Investors with respect to the registration of shares
of Common Stock held by and issued to the Preferred Holders upon the prior conversion of the Series
A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (the “Preferred
Stock”); and




          C. The Company and the Note Holders entered into a Securities Purchase Agreement dated
September 28, 2006 (the “Securities Purchase Agreement”) pursuant to which, among other
things, the Company issued Notes and Warrants to each Note Holder and, as a condition to the
issuance of such securities, the parties entered into this Agreement 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 issued to the Note Holders upon the prior conversion of the Notes and held by and
issuable to the Note Holders




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upon the exercise of Warrants issued to each Note Holder pursuant to the Securities Purchase
Agreement; and




          D. The Company has issued Bond Warrants in connection with that certain Purchase Agreement of
even date herewith (the “Purchase Agreement”) to each Bond Warrant Holder and, as a
condition to the issuance of such securities, the parties hereto desire to enter into this
Agreement to set forth, among other things, the rights of the Bond Warrant Holders with respect to
the registration of shares of Common Stock issuable to the Bond Warrant Holders upon the exercise
of Bond Warrants issued to each Bond Warrant Holder pursuant to the Purchase Agreement; and




          E. The Company previously effected the Initial Public Offering, pursuant to which all shares
of Preferred Stock and all Notes were converted into shares of Common Stock so that the Preferred
Stock and the Notes are no longer outstanding but the rights available to such Preferred Holders
and Note Holders pursuant to this Agreement remain in effect.




          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 Investor, severally and not jointly, hereby agree as
follows:




Article I Definitions.




     1.1 General Definitions. As used in this Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings set forth below:



          “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, Note Holder or Bond Warrant Holder, unless any such Person is otherwise (i.e., independent
of the Company) an Affiliate of such Preferred Holder, Note Holder or Bond Warrant Holder.




          “Agreement” shall have the meaning ascribed to it in the preamble to this Agreement.




          “Articles of Organization” means the Company’s Articles of Organization as in effect
and as amended, supplemented, restated or otherwise modified from time to time.




          “Board” means the Board of Directors of the Company.




          “Bond Warrant” shall mean any of those certain common stock warrants issued by the
Company to the initial holders of beneficial interests in the Bonds (as defined in the Indenture)
pursuant to which such holder (or any successor holder of such warrants) may acquire Common Stock
of the Company.




          “Bond Warrant Demand Registration” shall have the meaning ascribed to it in
Section 2.1(a)(iv).




          “Bond Warrant Holder” shall mean the holder of any Bond Warrant.




          “Bond Warrant Stock” shall mean any shares of Common Stock issued or issuable by the
Company to any Bond Warrant Holder upon the exercise of any Bond Warrant.




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          “Business Day” means a day, other than a Saturday or Sunday, on which banks in New
York, New York are open for the general transaction of business.




          “Cerberus” means Cerberus Capital Management, L.P., for itself and/or one or more of
its Affiliates and/or accounts managed by Cerberus Capital Management, L.P., including, without
limitation, Cerberus Partners, L.P.




          “Control” means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.




          “Co-Lead Investors” means Cerberus Partners, L.P. and MedCap Partners, L.P.




          “Commission” means the U.S. Securities and Exchange Commission or any other successor
federal agency then administering the Securities Act and other federal securities laws.




          “Common Stock” means the common stock, par value $.01 per share, of the Company, and
any other securities into which or for which such Common Stock may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, consolidation, sale of assets or
other similar transaction.




          “Company” shall have the meaning ascribed to it in the preamble to this Agreement.




          “Conversion Shares” means the shares of Common Stock issuable upon conversion of the
Series C Preferred Stock.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
federal statute, and the rules and regulations of the Commission issued under such Act, as they
each may, from time to time, be in effect.




          “Highland” means Highland Capital Management, L.P., for itself and/or one or more of
its Affiliates and/or accounts managed by Highland Capital Management, L.P.




          “Indenture” means the Indenture, dated as of November 16, 2007, among Molecular
Insight Pharmaceuticals, Inc. and The Bank of New York Trust Company, N.A., as Trustee.




          “Initial Public Offering” means the Company’s first underwritten public offering of
its Common Stock pursuant to a Registration Statement declared effective as of February 1, 2007.




          “Initiating Stockholders” means the Investor(s) who cause a Demand Notice to be
delivered pursuant to Section 2.1.




          “Investor(s)” shall have the meaning ascribed to it in the preamble to this Agreement.




          “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).




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          “Note and Warrant Stock” shall mean any shares of Common 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.




          “Other Stockholders” shall have the meaning ascribed to it in Section 2.1(d).




          “Person” means an individual, corporation, partnership, limited liability company,
trust, business trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity not specifically
listed herein..




          “Preferred Holders” shall have the meaning ascribed to it in the preamble to this
Agreement.




          “Preferred Stock” shall have the meaning ascribed to it in the recitals to this
Agreement.




          “Prospectus” shall mean the prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus.




          “Purchase Agreement” shall have the meaning ascribed to it in the recitals to this
Agreement.




          “Register,” “registered” and “registration” refer to a registration
made by preparing and filing a Registration Statement or similar document in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such Registration Statement or
document.




          “Registering Stockholder” shall mean any Preferred Holder, Note Holder, Bond Warrant
Holder and any Other Stockholder that participates in any Registration pursuant to Section 2
hereof, including any Initiating Stockholder.




          “Registrable Securities” means: (i) the shares of Common Stock issued upon the
conversion of the Preferred Stock; (ii) any Note and Warrant Stock, (iii) any Bond Warrant Stock,
(iv) any and all shares of Common Stock issued or issuable in respect of the Warrants or the Bond
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 previously issued as payment-in-kind dividends on the Preferred Stock; 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.




          “Registration Statement” means a Registration Statement filed by the Company with the
Commission for a public offering and sale of securities of the Company (other than a Registration
Statement on Form S-8 or Form S-4, or their successors, or any other form for a similar limited
purpose, or any Registration Statement covering only securities proposed to be issued in exchange
for securities or assets of another corporation).




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          “Requisite Bond Warrant Holders” shall mean (i) Highland and (ii) the holders of a
majority in principal amount of the outstanding Bond Warrants.




          “Requisite Note Holders” shall mean (i) Cerberus and (ii) the holders of a majority of
the Common Stock then issued and outstanding but not registered, which were issued upon conversion
of the Notes (excluding for this purpose the shares of Common Stock held by Cerberus).




          “Requisite Series AB Holders” means the holders of at least a majority of the Common
Stock then issued and outstanding but not registered, which were issued upon conversion of the
Series A Preferred Stock and Series B Preferred Stock.




          “Requisite Series C Holders” means Cerberus and Series C Holders holding at least a
majority of the Common Stock then issued and outstanding but not registered, which were issued upon
conversion of the Series C Preferred Stock.




          “Securities Act” means the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the Commission issued under such Act, as they
each may, from time to time, be in effect.




          “Series A Holders” shall have the meaning ascribed to it in the preamble to this
Agreement.




          “Series A Preferred Stock” shall have the meaning ascribed to it in the preamble to
this Agreement.




          “Series AB Demand Registration” shall have the meaning ascribed to it in Section
2.1(a)(ii).




          “Series AB Holders” means the Series A Holders and the Series B Holders.




          “Series B Holders” shall have the meaning ascribed to it in the preamble to this
Agreement.




          “Series B Preferred Stock” shall have the meaning ascribed to it in the preamble to
this Agreement.




          “Series C Demand Registration” shall have the meaning ascribed to it in Section
2.1(a)(i).




          “Series C Holders” shall have the meaning ascribed to it in the preamble to this
Agreement.




          “Series C Preferred Stock” shall have the meaning ascribed to it in the preamble to
this Agreement.




          “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.




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Article II  Registration Rights.




     2.1  Demand Registration.



          (a) At any time by delivery of written notice to the Company (a “Demand Notice”):




               (i) the Requisite Series C Holders may require the Company to register for sale under the
Securities Act all or any portion of the Registrable Securities held by the Series C Holders for
sale in the manner specified in such Demand Notice (a “Series C Demand Registration”). The
Requisite Series C Holders shall be entitled to only two (2) Series C Demand Registrations pursuant
to this Section 2.1(a)(i); provided, that, they may only make demand for
one such Series C 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; and



               (ii) the Requisite Series AB Holders may require the Company to register for sale under the
Securities Act all or any portion of the Registrable Securities held by the Series AB Holders for
sale in the manner specified in such Demand Notice; provided, that (i) the portion
of the Registrable Securities required to be so registered equals at least 25% of the shares of
Common Stock issuable upon conversion of the shares of Series A Preferred Stock and Series B
Preferred Stock then outstanding and (ii) the aggregate proceeds from the sale of the shares so
registered is reasonably expected to exceed $30,000,000 (a “Series AB Demand
Registration”). The Requisite Series AB Holders shall be entitled to only two (2) Series AB
Demand Registrations pursuant to this Section 2.1(a)(ii); provided, that,
they may only make demand for one such Series AB 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; and



               (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;



               (iv) The Requisite Bond Warrant Holders may require the Company to register for sale under the
Securities Act all or any portion of the Registrable Securities held by the Bond Warrant Holders
for sale in the manner specified in such Demand Notice (a “Bond Warrant Demand
Registration”); provided, however, that a Bond Warrant Demand Registration may
not be made within 180 days after the date hereof. The Requisite Bond Warrant Holders shall be
entitled to only two (2) Bond Warrant Demand Registrations pursuant to this Section 2.1(a)(iv),
except as provided in Section 2.1(a)(v); provided, that, they may only make
demand for one such Bond Warrant 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; and



               (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



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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, (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 and (dd) the Requisite Bond Warrant 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, Note Demand Registrations, or Bond Warrant Demand Registrations, as the case may be,
to which the Series C Holders, Series AB Holders, Note Holders or Bond Warrant Holders, as the case
may be, are entitled hereunder.




          (b) Following receipt of any Demand Notice under this Section 2.1, the Company shall
file a Registration Statement including the securities covered by such Demand Notice within thirty
(30) days after receipt of such Demand Notice (the “Filing Deadline”), and the Company
shall use its best efforts to effect the registration under the Securities Act as soon as
practicable, and in any event within one hundred eighty (180) days after receipt of such Demand
Notice (the “Effectiveness Deadline”), for public sale or re-sale in accordance with the
method of disposition specified in such Demand Notice of the number of Registrable Securities
specified in such Demand Notice. If a Registration Statement including the Registrable Securities
referenced in the Demand Notice is not (i) filed with the Commission on or prior to the applicable
Filing Deadline, or (ii) declared effective by the applicable Effectiveness Deadline, then the
Company shall make pro rata payments to each Investor whose securities are to be included in such
Registration Statement, as liquidated damages (and not as a penalty, as damages are impossible to
forecast or predict and these amounts are deemed reasonable in all respects), in an amount equal to
1.5% of the aggregate Market Price (as defined in the Articles of Organization) (as of the Filing
Deadline) of the Investor’s securities to be included in such Registration Statement for each
30-day period or pro rata for any portion thereof following the date by which such Registration
Statement should have been filed or declared effective, as the case may be, for which no
Registration Statement is filed or has not been declared effective, as the case may be, with
respect to the Registrable Securities. Such payments shall be in partial compensation to the
Investors, and shall not constitute the Investors’ exclusive remedy for such events. Such payments
shall be made to each Investor in cash. The amounts payable as liquidated damages pursuant to this
Section 2.1(b) shall be payable in lawful money of the United States, and amounts payable
as liquidated damages shall be paid within two (2) Business Days of the last day of each such
30-day period (or portion thereof if less than a full 30-day period) during which the Registration
Statement should have been filed or been declared effective, as the case may be, for which no
Registration Statement was filed or had not yet been declared effective, as the case may be, with
respect to the Registrable Securities. In the event the Company fails to make such payments in a
timely manner, such payments shall bear interest at the rate of 1.5% per 30-day period (prorated
for partial periods) until paid in full.




          (c) If the Initiating Stockholders intend to distribute the Registrable Securities covered by
their Demand Notice by means of an underwriting, the Initiating Stockholders shall so advise the
Company in their Demand Notice. If the method of disposition is an underwritten public offering,
the Initiating Stockholders may designate the managing underwriter of such offering, which
designation shall





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be subject to the Company’s approval, not to be unreasonably withheld. The Initiating
Stockholders may elect to include in such underwriting all or any part of the Registrable
Securities it holds, subject to the limitations required by the managing underwriter as provided
for in Section 2.1(d).




          (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; (ii) shares of Common Stock held by the
Requisite Series C Holders, the Requisite Note Holders and Requisite Bond Warrant Holders who are
not Initiating Stockholders (the “Non-Initiating Stockholders”); and (iii) shares of Common
Stock held by persons other than the Company, the Preferred Holders, the Note Holders and Bond
Warrant Holders (the “Other Stockholders”), 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, the Bond Warrant Holders and the Other Stockholders 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, the Non-Initiating Stockholders, and such Other
Stockholders than the terms afforded therein to the Initiating Stockholders); provided, however,
that no Registering Stockholder shall be required to make any representations or warranties, or
provide any indemnity, in connection with any such Registration other than representations and
warranties (or indemnities with respect thereto) as to (A) such Registering Stockholder’s ownership
of its securities to be transferred pursuant to such underwriting agreement free and clear of all
liens, claims and encumbrances, (B) such Registering Stockholder’s power and authority to effect
the sale of such securities pursuant to such underwriting agreement, (C) such matters pertaining to
compliance with securities laws by such Registering Stockholder as may be reasonably requested by
the representative of the underwriter or underwriters and (D) such matters relating to written
information furnished to the Company by such Registering Stockholder specifically for use in the
registration statement and prospectus (and any related documents) to be used by the Company in
connection with such Registration; provided further, however, that the
obligation of such Registering Stockholder to indemnify any Person pursuant to any such
underwriting agreement shall be several, not joint and several, among the Registering Stockholders
selling securities in such Registration, and the liability of each such Registering Stockholder
will be in proportion thereto; and provided further, however, that such
liability will be limited to the net amount (after giving effect to underwriters discounts and
commissions) received by such Registering Stockholder from the sale of its securities pursuant to
such Registration. 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 sought to be registered by the Preferred Holders, the Note Holders, the Bond
Warrant Holders and the Other Stockholders 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 Stockholders and the
Company have otherwise agreed in writing, such exclusion shall be applied first to the shares
sought to be registered by the Other Stockholders 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 to the shares sought to be registered by the Non-Initiating Stockholders; (4th)
then to the shares sought to be registered by the Series AB Holders who are Initiating Stockholders
and to the extent any such reduction is required by the managing underwriter; (5th) then to the
shares sought to be registered by the Series C Holders who are Initiating Stockholders and the Note
Holders who are Initiating Stockholders, 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; and (6th) then to the shares sought to be registered by the Bond Warrant Holders who
are Initiating Stockholders, 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, the Note Holders and Bond Warrant Holders shall be





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excluded prior to any exclusion of Registrable Securities of the Series C Holders, the Note
Holders and Bond Warrant 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, Bond Warrant Holders or any of the Other Stockholders 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), Bond Warrant Holder(s) or such Other Stockholder(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. If the Initiating Stockholder elects
to withdraw from such Registration, the initiation of such Registration shall not count as a demand
registration by such Initiating Stockholder for purposes hereof.




          (e) The Company may delay or postpone for up to 45 consecutive days effecting a Series AB,
Series C Demand Registration, Note Demand Registration or Bond Warrant 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 have a
material adverse effect on 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 of 60
days in any eighteen month period.




     2.2 Piggy-Back Registration.



          (a) If the Company at any time 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 S-4, S-8 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,
the Note Holders and the Bond Warrant Holders of its intention to do so (each, a “Piggy-Back
Notice”). Upon the written request of the Requisite Series C Holders, Requisite Note Holders
and/or Requisite Bond Warrant 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, Note Holders and/or Bond Warrant
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, the Note Holders and Bond Warrant Holders as a
part of a Piggy-Back Notice. In such event, the Preferred Holders’, Note Holders’ and Bond Warrant
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, the Note
Holders and Bond Warrant 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 (but if the Registration Statement was initiated by an Initiating
Stockholder, such underwriter shall be selected by such Initiating Stockholder, subject to the
Company’s approval, not to be unreasonably withheld), the terms of which shall be no less favorable
to the Preferred Holders, the Note Holders and the Bond Warrant Holders than the terms afforded
therein to the Company, provided, however, that no Registering Stockholder shall be required to
make any representations or warranties, or provide any indemnity, in connection with any such





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Registration other than representations and warranties (or indemnities with respect thereto)
as to (A) such Registering Stockholder’s ownership of its securities to be transferred pursuant to
such underwriting agreement free and clear of all liens, claims and encumbrances, (B) such
Registering Stockholder’s power and authority to effect the sale of such securities pursuant to
such underwriting agreement, (C) such matters pertaining to compliance with securities laws by such
Registering Stockholder as may be reasonably requested by the representative of the underwriter or
underwriters and (D) such matters relating to written information furnished to the Company by such
Registering Stockholder specifically for use in the registration statement and prospectus (and any
related documents) to be used by the Company in connection with such Registration; provided
further, however, that the obligation of such Registering Stockholder to indemnify
any Person pursuant to any such underwriting agreement shall be several, not joint and several,
among the Registering Stockholders selling securities in such Registration, and the liability of
each such Registering Stockholder will be in proportion thereto; and provided
further, however, that such liability will be limited to the net amount (after
giving effect to underwriters discounts and commissions) received by such Registering Stockholder
from the sale of its securities pursuant to such Registration.




          (b) Notwithstanding any other provision of this Section 2.2, if the managing
underwriter or underwriters in the registration giving rise to the Piggy-Back Notice (other than a
demand registration pursuant to Section 2.1) determine(s) that the number of shares to be
included in such registration (including any securities that the Company and the Other
Stockholders propose to be included that are not Registrable Securities) exceeds the largest number
of shares that can be sold without having an adverse effect on such offering (the “Maximum
Offering Size”), the Company will include in such registration, in the following priority, up
to the Maximum Offering Size:




               (i) first, that number of securities proposed to be registered by the Company if the Company
has initiated such registration;



               (ii) second, subject to Section 2.2(c) below, if the Maximum Offering Size has not
been exceeded pursuant to clause (i) in connection with a registration initiated by the Company,
that number of securities proposed to be registered for the account of the Bond Warrant Holders,
ratably between them treating them as one class for the purpose of this clause (ii);



               (iii) third, subject to Section 2.2(c) below, 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 Holders, ratably between them treating them as one class for the
purpose of this clause (iii);



               (iv) fourth, if the Maximum Offering Size has not then been exceeded, that number of
securities proposed to be registered for the account of the Series A and Series B Preferred Stock,
ratably between them treating them as one class for the purpose of this clause (iv);



               (v) fifth, if the Maximum Offering Size has not then been exceeded, that number of securities
proposed to be registered by the Company for its own account if the Company did not initiate such
registration; and



               (vi) sixth, if the Maximum Offering Size has not then been exceeded, any securities proposed
to be registered for the account of any other Persons (other than the Company and those Persons
described in clauses (ii), (iii) and (iv) immediately above) with such priorities among them as the
Company shall determine.



10









 





          (c) Notwithstanding the foregoing in Section 2.2(b), other than in the case of
offerings initiated by the Company, in no event shall the number of securities proposed to be
registered for the account of the Bond Warrant Holders, Series C Holders and the Note Holders
pursuant to Section 2.2(b)(ii) and (iii) above be reduced below thirty percent
(30%) of the total number of securities included in such registration.




          (d) Any request by a Preferred Holder, Note Holder or Bond Warrant 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, Note Holder or Bond Warrant Holder shall be deemed a
Series C Demand Registration, Note Demand Registration or Bond Warrant Demand Registration, as the
case may be, that reduces the number of such Series C Demand Registrations, Note Demand
Registrations or Bond Warrant Demand Registrations, as the case may be, to which the Series C
Holders, Note Holders or Bond Warrant Holders, as the case may be, are entitled hereunder.




          (e) 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, Note Holders or Bond Warrant Holders, as the case may be, have elected to include
securities in such registration.




          (f) There shall be no limitation on the number of registrations a Preferred Holder, Note
Holder or Bond Warrant Holder may participate in under this Section 2.2, and any such
participation shall not reduce the number of Series C Demand Registrations, Note Demand
Registrations or Bond Warrant Demand Registrations, as the case may be, to which the Series C
Holders, Note Holders and Bond Warrant Holders, respectively, are entitled hereunder.




     2.3 Limitation on Registration. Notwithstanding anything herein to the contrary, the
Company shall not be required to file a Registration Statement pursuant to Section 2.1 that
would: (i) require the Company to execute a general consent to service of process in any
jurisdiction in order to effect such registration if the Company is not already subject to service
in such jurisdiction, or (ii) subject the Company to taxation in a jurisdiction where the Company
is not otherwise subject to taxation.



     2.4 Registration Procedures. If and whenever the Company is required by the
provisions of Section 2.1 or 2.2 to effect the registration of any Registrable Securities
under the Securities Act, the Company shall, as expeditiously as possible:



          (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) (or any successor rule) 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,
the Bond Warrant 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, Bond
Warrant Holders and any such underwriters; the Company shall not file any Registration Statement or
amendment thereto or any 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





11









 







underwriters of the applicable offering, if any, or either of the Co-Lead Investors or
Highland 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, Note Holder’s or Bond Warrant 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, Note Holder and/or Bond Warrant
Holder, as the case may be, including without limitation any information describing the manner in
which the Preferred Holder, Note Holder or Bond Warrant 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 or Highland, the Company shall use its best efforts to cooperate with such
underwriters and each of the Co-Lead Investors and Highland to prepare, as soon as practicable, a
document that is responsive in all material respects to the reasonable objections of any of the
Co-Lead Investors and Highland;




          (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, a single law firm designated by the Requisite Bond Warrant Holders to represent
all of the Bond Warrant 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;




          (c) Prepare and file with the Commission such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the period specified herein and comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities covered by such
Registration Statement in accordance with the intended method of disposition set forth in such
Registration Statement for such period; provided, that, the Company shall comply
with the provisions of Section 2.4(a) above;




          (d) Furnish to the Preferred Holders, the Note Holders, the Bond Warrant 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 (or any successor rule) under the Securities Act as the Preferred
Holders, the Note Holders, the Bond Warrant Holders and such underwriter reasonably may request in
order to facilitate the disposition of the Registrable Securities covered by such Registration
Statement;




          (e) Use its best efforts to register or qualify the Registrable Securities covered by such
Registration Statement under the securities or “blue sky” laws of such jurisdictions as the sellers
of the Registrable Securities or, in the case of an underwritten public offering, the managing
underwriter reasonably shall request; provided, however, that the Company shall not
be required to (i) qualify to transact business as a foreign corporation in any jurisdiction where
it is not so qualified, (ii) consent to general service of process in effecting such Registration,
unless the Company is already subject to service of process in such jurisdiction or (iii) submit to
taxation in any such jurisdiction, unless the Company is already subject to service or subject to
taxation in such jurisdiction;




          (f) Use its best efforts to list or qualify the Registrable Securities covered by such
Registration Statement on any securities exchange or quotation system on which the Common Stock is





12









 







then listed or if they are not so listed, on such exchanges as the Initiating Stockholders may
reasonably request;




          (g) Comply in all material respects with all applicable rules and regulations under the
Securities Act and Exchange Act;




          (h) Immediately notify the Preferred Holders, the Note Holders, the Bond Warrant 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, Note Holder’s and Bond
Warrant 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, the Note
Holders and the Bond Warrant 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, the Note
Holders and the Bond Warrant 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 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, the Bond Warrant 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 the Bond Warrant 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, the Bond Warrant 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, Note Holder or Bond Warrant Holder would, under applicable law, prohibit the
Preferred Holder, Note Holder or Bond Warrant Holder from trading in the Company’s securities;




          (k) Notify the Preferred Holders, the Note Holders and Bond Warrant 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





13












 




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;




          (l) Take such other actions as the Preferred Holders, the Note Holders, the Bond Warrant
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 Preferred Holders,
the Note Holders, the Bond Warrant Holders or the underwriters reasonably request in order to
expedite or facilitate such disposition;




          (m) Use its reasonable best efforts to prevent the issuance of any stop order or other
suspension of effectiveness and, if such order is issued, obtain the withdrawal of any such order
at the earliest possible moment; and




          (n) Otherwise use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission under the Securities Act and the Exchange Act and take such other
actions as may be reasonably necessary to facilitate the registration of the Registrable Securities
hereunder; and make available to its security holders, as soon as reasonably practicable, but not
later than the Availability Date (as defined below), an earnings statement covering a period of at
least twelve (12) months, beginning after the effective date of each Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act (for the
purpose of this Section 2.4(n), “Availability Date” means the 45th day following
the end of the fourth fiscal quarter that includes the effective date of such Registration
Statement, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal
year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter).




     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, one law firm designated by the Bond Warrant 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.



     2.6 Indemnification and Contribution.



          (a) The Company shall indemnify and hold harmless, to the fullest extent permitted by law,
each Preferred Holder, Note Holder, Bond Warrant Holder and its respective Affiliates and the
directors, officers, employees, investors, partners and agents (including lawyers and accountants)
of each Preferred Holder, Note Holder, Bond Warrant 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 or any
violation by



14









 






the Company of the Securities Act, the Exchange Act or any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities
laws in connection with the offering covered by such Registration; 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, Note Holder or Bond Warrant 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, Bond Warrant 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, Note Holder and Bond Warrant 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, the Note Holder or Bond Warrant 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, severally and jointly, 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 such Preferred Holder, Note Holder or Bond Warrant Holder expressly for
use therein. Notwithstanding anything in this Agreement to the contrary, in no event shall the
Preferred Holder’s, Note Holder’s or Bond Warrant Holder’s indemnification obligation exceed the
dollar amount of the net proceeds actually received (after giving effect to underwriters discounts
and commissions) by such Preferred Holder, Note Holder or Bond Warrant Holder from the sale of the
Registrable Securities under the Registration Statement giving rise to such obligation.




          (c) Promptly after receipt by any Person (the “Indemnified Person”) of notice of any
demand, claim or circumstances which would or might give rise to a claim or the commencement of any
action, proceeding or investigation in respect of which indemnity may be sought pursuant to
Section 2.6, such Indemnified Person shall promptly notify the party obligated to provide
indemnification under this Section 2.6 in respect thereof (an “Indemnifying Party”)
and the Indemnifying Party shall assume the control and defense thereof, including the employment
of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all
fees and expenses in connection with such defense and such counsel; provided,
however, that the failure of any Indemnified Person to so notify the Indemnifying Party
shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is actually and materially prejudiced by such failure to notify. In any
such proceeding, any Indemnified Person shall have the right to retain its own counsel, but
the fees and



15









 






expenses of such counsel shall be at the expense of such Indemnified Person unless:
(i) the Indemnifying Party and the Indemnified Person shall have mutually agreed to the retention
of such counsel; or (ii) in the reasonable judgment of counsel to such Indemnified Person (x)
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (y) if there are one or more defenses available to
such Indemnified Person that is/are not available to the Indemnifying Party. Without the prior
written consent of the Indemnified Person, which consent shall not be unreasonably withheld,
delayed or conditioned, the Indemnifying Party shall not effect any settlement of any pending or
threatened action, claim or proceeding with respect to any Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all liability arising
out of such proceeding.




          (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 Sections 2.6(b) and 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 of this Agreement, in no event shall any
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 such Investor 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; provided, however, that the terms set forth in any such
underwriting with respect to the Investor’s indemnification obligations shall be subject to the
restrictions on such obligations set forth in this Agreement.



16









 





          (e) Notwithstanding anything in this Agreement to the contrary, the indemnities and
obligations provided in this Section 2.6 shall survive the transfer of any Registrable
Securities by the Investor.




     2.7 Reporting. With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, so long as the Company is subject to the reporting requirements
of the Exchange Act, the Company shall:



          (a) make and keep public information available, as contemplated in Rule 144(c) under the
Securities Act (or any successor rule);




          (b) use its best efforts to file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act to, among other
things, remain eligible to use Form S-3 (or any successor thereto); and




          (c) so long as an Investor owns any Registrable Securities, furnish to such Investor, upon
request, (i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (or any successor rule), and of the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company if such reports are not otherwise available on the EDGAR system;
and (iii) such other information as may be reasonably requested to permit the Investors to sell
such securities pursuant to Rule 144 without registration.




     2.8 Furnishing Information.



               (a) The Company shall make available, during normal business hours, for inspection and review
by each of the Investors whose Registrable Securities are to be included in a Registration
Statement, and their respective advisors and representatives (who may or may not be Affiliated with
such Investor), and any underwriter participating in any disposition of Common Stock on behalf of
the such Investors pursuant to a Registration Statement or amendments or supplements thereto or any
blue sky, NASD or other filing, all financial and other records, all filings with the Commission,
and all other corporate documents and properties of the Company as may be reasonably necessary for
the purpose of such review, and cause the Company’s officers, directors and employees, within a
reasonable time period, to supply all such information reasonably requested by such Investors or
any such representative, advisor or underwriter in connection with such Registration Statement
(including, without limitation, in response to all questions and other inquiries reasonably made or
submitted by any of them), prior to the filing and effectiveness of the Registration Statement for
the sole purpose of enabling such Investors and such representatives, advisors and underwriters and
their respective accountants and attorneys to conduct initial due diligence with respect to the
Company and the accuracy of such Registration Statement. Notwithstanding the foregoing, the
Company shall not disclose material nonpublic information to the Investors, or to advisors to or
representatives of the Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides the Investors,
such advisors and representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review.



               (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, Note Holder or Bond Warrant Holder, as the
case may be, furnish to the Company in writing such information regarding such Preferred Holder,



17









 







Note Holder or Bond Warrant 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.



     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, the
Requisite Note Holders and the Requisite Bond Warrant Holders. Until after the effective date of a
Registration Statement which includes Registrable Securities owned by Series C Holders, Note
Holders and Bond Warrant 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 S-1, S-3, S-4 or S-8 or any successor form to
any of the foregoing, without the consent of the Requisite Series C Holders, the Requisite Note
Holders and the Requisite Bond Warrant Holders.



     2.10 Lock Up. Each Series AB Holder shall, in connection with any registration of the
Company’s securities, upon the request of the Company or the underwriters managing any underwritten
offering of the Company’s securities, agree in writing not to effect any sale, transfer,
disposition or distribution of any of its Registrable Securities (other than that included in such
registration) without the prior written consent of the Company or such underwriters, as the case
may be, for such period of time not to exceed one hundred eighty (180) days from the effective date
of such registration as the Company or the underwriters may specify.



Article III Miscellaneous.




     3.1 Successors and Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the Company and, with regards to the Common Stock issued upon
the conversion of the Notes or Series C Preferred Stock, Cerberus, and, with regard to the Common
Stock issued or issuable upon exercise of the Bond Warrants, Highland, and, if such assignment
materially adversely affects the Series AB Holders, the Requisite Series AB Holders;
provided, however, that a Preferred Holder, a Note Holder or a Bond Warrant 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, Note Holder or Bond Warrant Holder, as the case may be, transfers any of the Registrable
Securities, or in the case of a Bond Warrant Holder, a Bond Warrant, 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, Note Holder or Bond Warrant 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.



     3.2 Counterparts; Faxes. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may also be executed via facsimile, which shall be deemed an
original.



     3.3 Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.



18









 





     3.4 Notices. Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given as hereinafter described:
(i) if given by personal delivery, then such notice shall be deemed given upon such delivery; (ii)
if given by fax, then such notice shall be deemed given upon receipt of confirmation of complete
transmittal with a confirming copy to be sent by email or first class mail; (iii) if given by mail,
then such notice shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three (3) days after such notice is deposited in first class mail, postage
prepaid; and (iv) if given by an internationally recognized overnight air courier, then such notice
shall be deemed given one (1) Business Day after delivery to such carrier. All notices shall be
addressed to the party to be notified at the address as follows, or at such other address as such
party may designate by ten (10) days’ advance written notice to the other party:



If to the Company:




Molecular Insight Pharmaceuticals, Inc.

160 Second Street

Cambridge, Massachusetts 02142

Attn: David Barlow

Fax: (617) 492-5664




With a copy to:




Foley & Lardner LLP

111 Huntington Avenue

26th Floor

Boston, Massachusetts 02199

Attn: Gabor Garai, Esq.

Fax: (617) 342-4001




If to any of the Investors:




to the addresses set forth on the signature pages attached hereto.




If to any Series AB Holder:




to the addresses set forth on Schedule A attached hereto.



or to such other address as any party hereto shall notify the other parties hereto (as provided
above) from time to time.




     3.5 Expenses. In the event that legal proceedings are commenced by any party to this
Agreement against another party to this Agreement in connection with this Agreement, the party or
parties which do not prevail in such proceedings shall severally, but not jointly, pay their pro
rata share of the reasonable attorneys’ fees and other reasonable out-of-pocket costs and expenses
incurred by the prevailing party in such proceedings.



     3.6 Amendments and Waivers. This Agreement shall not be amended without the prior
written consent of (i) the Requisite Series C Holders, the Requisite Note Holders and the Requisite
Bond Warrant 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



19









 







to such amendment, action or omission to act, of (i) the Requisite Series C Holders, the
Requisite Note Holders and the Requisite Bond Warrant Holders and (ii) if such amendment, action or
omission to act materially adversely affects the Series AB Holders, the Requisite Series AB
Holders.



     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, Note
Holders or Bond Warrant Holders without, in the case of a release or announcement by any of the
Preferred Holders, the Note Holders or the Bond Warrant 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, the Requisite Note Holders and the Requisite Bond Warrant 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 or the Requisite Bond Warrant 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.



     3.8 Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.



     3.9 Entire Agreement. This Agreement, including Schedules, constitutes the entire
agreement among the parties hereof with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, both oral and written, between the parties with
respect to the subject matter hereof and thereof.



     3.10 Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.



     3.11 Governing Law; Consent to Jurisdiction. This Agreement 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 (other than Section 5-1401 and Section 5-1402 of the New York
General Obligations Law). 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 AND SERIES B HOLDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY
IN ANY LEGAL PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT



20









 







OR ANY OTHER TRANSACTION
DOCUMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.



     3.12 Independent Nature of Investors’ Obligations and Rights. Except as expressly
provided herein and therein, the obligations of each Investor under this Agreement are several and
not joint with the obligations of any other Investor, and no Investor shall be responsible in any
way for the performance of the obligations of any other Investor under this Agreement. Nothing
contained herein, and no action taken by any Investor (including, without limitation, any of the
Co-Lead Investors) pursuant hereto or thereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Investors are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement. Each Investor acknowledges that no other
Investor (including, without limitation, any of the Co-Lead Investors) has acted as agent for such
Investor in connection with this Agreement or in making its investment in the Company and that no
Investor (including, without limitation, any of the Co-Lead Investors) will be acting as agent of
such Investor in connection with monitoring its investment in the Company or enforcing its rights
under this Agreement. Each Investor shall be entitled to independently protect and enforce its
rights, including, without limitation, the rights arising out of this Agreement, and it shall not
be necessary for any other Investor to be joined as an additional party in any proceeding for such
purpose. Notwithstanding anything contained in this Agreement to the contrary, neither of the
Co-Lead Investors shall have any duty, fiduciary or otherwise, to any other Investor by virtue of
such Investor serving as a Co-Lead Investor or otherwise.



     3.13 Injunctive Relief. It is acknowledged that it will be impossible to measure the
damages that would be suffered by an Investor if the Company fails to comply with the provisions of
this Agreement and that in the event of any such failure, the Investor will not have an adequate
remedy at law. The Investor shall, therefore, be entitled to obtain specific performance of any of
the Company’s obligations hereunder and to obtain immediate injunctive relief. The Company shall
not argue, as a defense to any proceeding for such specific performance or injunctive relief, that
the Investor has an adequate remedy at law.



[Remainder of Page Intentionally Left Blank]




21









 





[Company Signature Page]




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement
to be executed by their duly authorized representatives, as of the date first written above.



	 	 	 	 	 
	 	THE COMPANY:



MOLECULAR INSIGHT PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ John E. McCray
 	 
	 	 	Name:  	John E. McCray 	 
	 	 	Title:  	COO 	 



22









 






[Series A Holder Signature Page]





     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES A HOLDER:



James W. [illegible] Revocable Trust

 	 
	 	By:  	/s/ James W. [illegible]
 	 
	 	 	Name:  	James W. [illegible] 	 
	 	 	Title:  	Trustee 	 
	 
	 	 	 	 
	 
	Address:  	 	3100 Springhead Court	 
	 
	 	 	Narcoossee, FL 34771	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






23








 






[Series A Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES A HOLDER:



Patricia T. [illegible] Revocable Trust

 	 
	 	By:  	/s/ Patricia T. [illegible] 	 
	 	 	Name:  	Patricia T. [illegible] 	 
	 	 	Title:  	Trustee 	 
	 
	 	 	 	 
	 
	Address: 	3100 Springhead Court	 
	 
	 	 	Narcoossee, FL 34771	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






24







 






[Series A Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES A HOLDER:

 	 
	 	By:  	/s/ [illegible] 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 	 
	 
	Address:  	 
	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






25







 






[Series A Holder Signature Page]




     IN WITNESS
WHEREOF, the undersigned has executed this Agreement as of the date first above written.



	 	 	 	 	 
	 	NAME OF SERIES A HOLDER:

 	 
	 	By:  	/s/ [illegible] M. Barber 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 	 
	 
	Address: 	44 [Illegible]	 
	 
	 	 	Wellesley, MA [illegible]	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






26







 






[Series A Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES A HOLDER:



Meythaler Investment Partners, LC

 	 
	 	By:  	/s/ L. Charles Meythaler 	 
	 	 	Name:  	L. Charles Meythaler 	 
	 	 	Title:  	Managing Shareholder 	 
	 
	 	 	 	 
	 
	Address:  	399 Wahackme Road	 
	 
	 	 	New Canaan, CT 06840	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






27







 






[Series A Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES A HOLDER:



Meythaler Investors, LLC

 	 
	 	By:  	/s/ L. Charles Meythaler 	 
	 	 	Name:  	L. Charles Meythaler 	 
	 	 	Title:  	Manager 	 
	 
	 	 	 	 
	 
	Address:  	399 Wahackme Road	 
	 
	 	 	New Canaan, CT 06840	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






28








 






[Series B Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES B HOLDER:



CERBERUS PARTNERS, L.P.

 	 
	 	By:  	Cerberus Associates, LLC 	 
	 	 	Its General Partner 	 
	 
	 	 	 	 
	 	By:  	/s/ Jeffrey L. Lemasky 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	 	 	 
	 
	Address:  	299 Park Avenue	 
	 
	 	 	New York, NY	 
	 
	 	 	10171	 	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






29







 






[Series B Holder Signature Page]




     IN WITNESS
WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES B HOLDER:



CERBERUS AMERICA SERIES TWO HOLDINGS, LLC

 	 
	 	By:  	Cerberus Institutional Partners (America), L.P. — Series Two Its Managing Member 	 
	 
	 	 	 	 
	 	 	 
	 	By:  	Cerberus Institutional Associates (America), L.L.C. Its General Partner 	 
	 
	 	 	 	 
	 	 	 
	 	By:  	/s/ Jeffrey L. Lemasky 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	 	 	 
	 
	Address:  	299 Park Avenue	 
	 
	 	 	New York, NY	 
	 
	 	 	10171	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






30








 






[Series B Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES B HOLDER:



CERBERUS SERIES THREE HOLDINGS, LLC.

 	 
	 	By:  	Cerberus Institutional Partners, L.P. — Series Three	 
	 	 	Its Managing Member 	 
	 	 	 
	 	By:  	Cerberus Institutional 	 
	 	 	Associates, L.L.C 	 
	 	 	 
	 	By:  	/s/ Jeffrey L. Lemasky 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	 	 	 
	 
	Address: 	299 Park Avenue	 
	 
	 	 	New York, NY	 
	 
	 	 	10171	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 








31








 






[Series B Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES B HOLDER:



Meythaler Investors, LLC

 	 
	 	By:  	/s/ L. Charles Meythaler 	 
	 	 	Name:  	L. Charles Meythaler 	 
	 	 	Title:  	Manager 	 
	 
	 	 	 	 
	 
	Address: 	399 Wahackme Road	 
	 
	 	 	New Canaan, CT 06840	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 








32








 






[Series B Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES B HOLDER:



Meythaler Investment Partners, LC

 	 
	 	By:  	/s/ L. Charles Meythaler 	 
	 	 	Name:  	L. Charles Meythaley 	 
	 	 	Title:  	Managing Shareholder 	 
	 
	 	 	 	 
	 
	Address: 	399 Wahackme Road	 
	 
	 	 	New Canaan, CT 06840	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 








33







 






[Series B Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES B HOLDER:



Daniel R. Frank

 	 
	 	By:  	/s/ Daniel Frank 	 
	 	 	Name:  	Daniel Frank 	 
	 	 	Title:  	 	 
	 
	 	 	 	 
	 
	Address: 	19 [illegible] Road	 
	 
	 	 	Darien, CT 06720	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 






34







 






[Series C Holder Signature Page]




     IN WITNESS
WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:



Patricia T. [ineligible] Revocable Trust

 	 
	 	By:  	/s/ Patricia T. [ineligible] 	 
	 	 	Name:  	Patricia T. [ineligible] 	 
	 	 	Title:  	Trustee 	 
	 
	 	 	 	 
	 
	Address:	3100 Springhead Court	 
	 
	 	 	Narcoossee, FL 34771	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 







35







 






[Series C Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:



James W. [ineligible] Revocable Trust

 	 
	 	By:  	/s/ James W. [ineligible] 	 
	 	 	Name:  	James W. [ineligible] 	 
	 	 	Title:  	Trustee 	 
	 
	 	 	 	 
	 
	Address:  	3100 Springhead Court	 
	 
	 	 	Narcoossee, FL 34771	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 







36








 






[Series C Holder Signature Page]




     IN WITNESS
WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:



MEYTHALER INVESTMENT PARTNERS LC

 	 
	 	By:  	/s/ L. Charles Meythaler 	 
	 	 	Name:  	L. Charles Meythaler 	 
	 	 	Title:  	Managing Shareholder 	 
	 
	 
	Address:  	399 Wahackme Road	 
	 
	 	 	New Canaan, CT 06840	 
	 
	 	 	 	 
	 
	 	 	 
	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 
	 
	 	 	 	 
	 
	 
	 







37








 



[Series C Holder Signature Page]



      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:
 	 
	 	By:  	/s/ James T. Lenehan 	 
	 	 	Name:  	James T. Lenehan 	 
	 	 	Title:  	 	 
	 




	 	 	 	 	 	 	 
	 

	 	Address:
	 	1586 Hampton Road
	 	 
	 

	 	 	 	Rydal, PA 19046	 	 
	 

	 	 	 	215-896-3287	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 
	 
	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 






38






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:





DANIEL R. FRANK

 	 
	 	By:  	/s/ Daniel Frank
 	 
	 	 	Name:  	Daniel R. Frank 	 
	 	 	Title:  	 	 
	 




	 	 	 	 	 	 	 
	 

	 	Address:

	 	
19 Whaling Road
	 	 
	 

	 	 	 	Darien, CT	 	 
	 

	 	 	 	06820	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):	 
	 
	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 






39






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:





International Durham, Ltd.

 	 
	 	By:  	/s/ [ineligible]
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





	 	 	 	 	 
	 
	 	Address:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 
	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 

	 	 






40






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:





American Durham, L.P.

 	 
	 	By:  	/s/ [ineligible]
 	 
	 	 	Title:  	 
	 	 	Name: 	 
	 





	 	 	 	 	 
	 
	 	Address:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 
	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 

	 	 







41






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:





CERBERUS SERIES THREE HOLDINGS, LLC.

 	 
	 	By:  	Cerberus Institutional Partners,
 	 
	 	 	L.P. -- Series Three
	 	 	Its Managing Member
	 
	 	By:  	Cerberus Institutional 	 
	 	 	Associates, L.L.C
	 	 	Its General Partner
	 
	 	By:  	/s/ Jeffrey L. Lemasky
 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 





	 	 	 	 	 	 	 
	 

	 	Address:
	 	299 Park Avenue
	 	 
	 

	 	 	 	New York, NY	 	 
	 

	 	 	 	10171	 	 







	 	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 







42






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:





CERBERUS AMERICA SERIES TWO HOLDINGS, LLC

 	 
	 	By:  	Cerberus Institutional Partners
 	 
	 	 	(America), L.P. -- Series Two
	 	 	Its Managing Member
	 
	 	By:  	Cerberus Institutional 	 
	 	 	Associates (America), L.L.C.
	 	 	Its General Partner
	 
	 	By:  	/s/ Jeffrey L. Lemasky 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 





	 	 	 	 	 	 	 
	 

	 	Address:
	 	299 Park Avenue
	 	 
	 

	 	 	 	New York, NY	 	 
	 

	 	 	 	10171	 	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 







	 	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 

	 	 






43






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:


CERBERUS PARTNERS, L.P.
 	 
	 	By:  	Cerberus Associates, L.L.C. 	 
	 	 	Its General Partner 	 
	 
	 	By:  	/s/ Jeffrey L. Lemasky 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 






	 	 	 	 	 
	 
	 	Address:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):	 	 
	 
	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	 	 






44






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:



CERBERUS INTERNATIONAL, LTD.



BY: Partridge Hill Overseas

Management, LLC

Its Investment Manager

 	 
	 	By:  	/s/ Jeffrey L. Lemasky 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	 	 	 
	 
	Address: 	299 Park Avenue 	 
	 
	 	 	New York, NY	 
	 
	 	 	10171	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 
	 
	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 
	 	 





45






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:





Institutional Benchmarks Series
(Master Feeder) Limited, acting solely
in respect of the Canopus series

 	 
	 	By:  	/s/ Didier Centis
 	 
	 	 	Name: Didier Centis	 	 
	 	 	Title: Authorized Signatory	 	 
	 




	 	 	 	 	 
	 

	Address:
	 	 
	 

	140 East
45th Street, 16th Floor	 	 
	 

	New York, NY 10017	 	 






	 	 	 	 	 
	 

	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 
	 	 	 	 
	 

	 	 
	 
	 	 	 	 
	 

	 	 






46






 




[Series C Holder Signature Page]




      IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.


	 	 	 	 	 
	 	NAME OF SERIES C HOLDER:



MedCap Partners L.P.

 	 
	 	By:  	/s/ [ineligible] Tumay
 	 
	 	 	Name: [ineligible] Tumay 	 
	 	 	Title:  	Managing Member of the GP 	 
	 
	 	 	 	 
	 
	Address:	500 3rd Street  #535	 
	 
	 	 	[ineligible], CA 94107	 
	 
	 	 	 	 
	 
	With a copy to (which shall not be deemed notice for purposes of the
Agreement):	 
	 
	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 
	 	 
	 
	 	 	 	 
	 
	 	 





47






 





[Series C Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 

	 	NAME OF SERIES C HOLDER:

Siemens Venture Capital GmbH	 	 
	 
	 	 	 	 
	 

	 	By:  /s/ Dr. Ralf Schnell
	 	/s/  Thomas Kolbinger
	 	 	 
	 

	 	Name:  Dr. Ralf Schnell
	 	Name:  Thomas Kolbinger
	 

	 	Title:  CEO
	 	Title:  CFO






	 	 	 	 	 	 	 
	 

	 	Address:
	 	Siemens Venture Capital GmbH
	 	 
	 

	 	 	 	Wittelsbacherplatz 2	 	 
	 

	 	 	 	80200 Munich	 	 
	 
	 	 	 	 	 	 
	 	 	With a copy to (which shall not be deemed notice for purposes of the Agreement):
	 
	 	 	 	 	 	 
	 	 	Andrew Jay	 	 
	 	 	Siemens Venture Capital, Inc.	 	 
	 	 	Boston MA 02116	 	 
	 	 	USA	 	 







48








 




[Note Holder Signature Page]



     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.



	 	 	 	 	 
	 	NAME OF NOTE HOLDER:





International Durham, Ltd.

 	 
	 	By:  	/s/ [ineligible] 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 

	 	Address:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 







49









 





[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement 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/ [ineligible]
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 

	 	Address:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 







50 









 






[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.



	 	 	 	 	 
	 	NAME OF NOTE HOLDER:





Bear Creek [ineligible] Ltd

 	 
	 	By:  	/s/ Andrew R. Midler 	 
	 	 	Name:  	Andrew R. Midler 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 

	 	Address:
	 	Andrew R. Miller
	 

	 	 	 	6501 Red Rock Place
	 

	 	 	 	Suite 201
	 

	 	 	 	St. Thomas, USVI
	 

	 	 	 	00802  







	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 







51 









 





[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.



	 	 	 	 	 
	 	NAME OF NOTE HOLDER:





JONATHAN GALLEN

 	 
	 	By:  	/s/ Jonathan Gallen 	 
	 	 	Name:  	Jonathan Gallen 	 
	 	 	Title:  	President, Ahab Capital
Management, Inc.
Investment Advisor, Ahab
International, Ltd. 	 
	 


Address:

Ahab International, Ltd.


299 Park Avenue

17th Floor

New York, NY

10171




	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 







52 









 





[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.



	 	 	 	 	 
	 	NAME OF NOTE HOLDER:





JONATHAN GALLEN

 	 
	 	By:  	/s/ Jonathan Gallen 	 
	 	 	Name:  	Jonathan Gallen 	 
	 	 	Title:  	Managing Member, Pequod LLC,
Investment Advisor, Ahab Partners, L.P. 	 


Address:

Ahab Partners, L.P.


299 Park Avenue

17th Floor

New York, NY

10171




	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 







53









 





[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.



	 	 	 	 	 
	 	NAME OF NOTE HOLDER:





CERBERUS SERIES THREE HOLDINGS, LLC.

 	 
	 	By:  	Cerberus Institutional Partners,
 	 
	 	 	L.P. — Series Three 	 
	 	 	Its Managing Member 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Cerberus Institutional 	 
	 	 	Associates, L.L.C 	 
	 	 	Its General Partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Jeffrey L. Lemasky 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 



	 	 	 	 	 
	 

	 	Address:
	 	299 Park Avenue
	 

	 	 	 	New York, NY
	 

	 	 	 	10171  







	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 

	 
	 	 
	 

	 	 








54











 






[Note Holder Signature Page]




     IN WITNESS
WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.




	 	 	 	 	 
	 	NAME OF NOTE HOLDER:





CERBERUS AMERICA SERIES TWO HOLDINGS, LLC

 	 
	 	By:  	Cerberus Institutional Partners (America), L.P. — Series Two	 
	 	 	Its Managing Member 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Cerberus Institutional Associates (America), L.L.C.
 	 
	 	 	Its General Partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Jeffrey L. Lemasky
 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	299 Park Avenue
	 	 
	 

	 	 	 	New York, NY
	 	 
	 

	 	 	 	10171	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 






55









 






[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement 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, L.L.C.
 	 
	 	 	Its General Partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                      /s/ Jeffrey L. Lemasky
 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	299 Park Avenue
	 	 
	 

	 	 	 	New York, NY
	 	 
	 

	 	 	 	10171	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 






56









 






[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.



	 	 	 	 	 
	 	NAME OF NOTE HOLDER:





CERBERUS INTERNATIONAL, LTD.





BY: Partridge Hill Overseas

Management, LLC

Its Investment Manager
 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Jeffrey L. Lemasky
 	 
	 	 	Name:  	Jeffrey L. Lemasky 	 
	 	 	Title:  	Senior Managing Director 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	299 Park Avenue
	 	 
	 

	 	 	 	New York, NY
	 	 
	 

	 	 	 	10171	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 






57









 






[Note Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement or caused this Agreement to be
executed by its duly authorized representative, as of the date first written above.



	 	 	 	 	 
	 	NAME OF NOTE HOLDER:



Institutional Benchmarks Series

(Master Feeder) Limited, acting solely

in respect of the Canopus series

 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Didier Centis
 	 
	 	 	Name:  	Didier Centis 	 
	 	 	Title:  	Authorized Signatory 	 
	 




	 	 	 	 	 	 	 
	 

	 	Address:
	 	140 East 45th Street,
	 	 
	 

	 	 	 	16th Floor	 	 
	 

	 	 	 	New York, NY 10017	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 






58









 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:



Morgan Stanley & Co. Incorporated

 	 
	 	By:  	/s/ Dan Allen
 	 
	 	 	Name:  	Dan Allen 	 
	 	 	Title:  	Authorized Signatory 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	1585 Broadway, 2nd Floor
	 	 
	 

	 	 	 	New York, NY 10036	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):

	 
	 

	 	Daniel Yarsky

1585 Broadway, 2nd Floor

New York, NY 10036

212-761-2989

212-507-0626 (fax)

	 
	 

	 	Gina Walsh

1585 Broadway, 10th Floor

New York, NY 10036

212-761-1036

212-507-0473 (fax)
	 	 






59









 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:





Highland Crusader Offshore Partners,

L.P.

 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Highland Crusader Fund GP, L.P.,
 	 
	 	 	its general partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	 Highland Crusader GP, LLC, its
 	 
	 	 	general partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Highland Capital Management, L.P.,
 	 
	 	 	its sole member 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Strand Advisors, Inc., its general
 	 
	 	 	partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Ken McGovern
 	 
	 	 	Name:  	Ken McGovern, Treasurer 	 
	 	 	Strand Advisors, Inc., General
Partner of Highland Capital
management, L.P. 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	13455 Noel Road, Suite 800
	 	 
	 

	 	 	 	Dallas, TX 75240	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 






60










 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:





Highland Credit Strategies Master

Fund, L.P.

 	 
	 



	 	 	 	 	 
	 	By: Highland General Partner, L.P.,

its general partner

 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Highland GP Holdings LLC, its 	 
	 	 	general partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     Highland Capital Management, L.P.,
 	 
	 	 	its sole member 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     Strand Advisors, Inc., its general
 	 
	 	 	partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Ken McGovern
 	 
	 	 	Name:  	Ken McGovern, Treasurer 	 
	 	 	Strand Advisors, Inc., General
Partner of Highland Capital
Management, L.P. 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	13455 Noel Road, Suite 800
	 	 
	 

	 	 	 	Dallas, TX 75240	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 






61









 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:





Highland Credit Opportunities CDO, L.P.

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 
	 	By:  	Highland Credit Opportunities CDO GP, L.P., its general partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Highland GP Holdings LLC, its
 	 
	 	 	general partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	 Highland Credit Opportunities CDO 	 
	 	 	GP, LLC, its general partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     Highland Capital Management, L.P.,
 	 
	 	 	its sole member 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     Strand Advisors, Inc., its general
 	 
	 	 	partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Ken McGovern
 	 
	 	 	Name:  	Ken McGovern, Treasurer 	 
	 	 	Strand Advisors, Inc., General Partner of Highland Capital Management, L.P. 	 
	 





	 	 	 	 	 	 	 
	 
	 	Address:	 	13455 Noel Road, Suite 800	 	 
	 
	 	 	 	Dallas, TX 75240	 	 






	 	 	 	 	 
	 
	 	With a copy to (which shall not be
deemed notice for purposes of the Agreement):	 	 
	 
	 	 	 	 
	 
	 	 
	 	 
	 
	 	 	 	 
	 
	 	 
	 	 
	 
	 	 	 	 
	 
	 	 
	 	 






62









 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:





QVT Fund LP

 	 
	 	By:  	QVT Associates GP LLC, its general
 	 
	 	 	partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Tracy Fu
 	 
	 	 	Name:  	Tracy Fu 	 
	 	 	Its: Managing Member 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	c/o QVT Financial LP
	 	 
	 

	 	 	 	1177 Avenue of the American	 	 
	 

	 	 	 	New York, NY 10036	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 






	 	 	 	 	 
	 

	 	/s/ Arthur Chu
	 	 
	 

	 	 	 	 
	 

	 	By: Arthur Chu	 	 
	 

	 	 	 	 
	 

	 	Its: Authorized Signatory	 	 
	 

	 	 	 	 





63









 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:





Quintessence Fund LP

 	 
	 	By:  	QVT Associates GP LLC, its general
 	 
	 	 	partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Tracy Fu
 	 
	 	 	Name:  	Tracy Fu 	 
	 	 	Its: Managing Member 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	c/o QVT Financial LP
	 	 
	 

	 	 	 	1177 Avenue of the American	 	 
	 

	 	 	 	New York, NY 10036	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 






	 	 	 	 	 
	 

	 	/s/ Arthur Chu
	 	 
	 

	 	 	 	 
	 

	 	By: Arthur Chu	 	 
	 

	 	 	 	 
	 

	 	Its: Authorized Signatory	 	 
	 

	 	 	 	 





64 









 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:



Taconic Opportunity Fund LP

 	 
	 	By:  	Taconic Capital Advisors LP, as
 	 
	 	 	Investment Advisor 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Joshua Miller
 	 
	 	 	Name:  	Joshua Miller 	 
	 	 	Title:  	Principal 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	Taconic Opportunity Fund LP
	 	 
	 

	 	 	 	Att: Josh Miller	 	 
	 

	 	 	 	450 Park Anenue,	 	 
	 

	 	 	 	9th Floor	 	 
	 

	 	 	 	New York, NY 10022	 	 






65 









 






[Bond Warrant Holder Signature Page]




     IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NAME OF BOND WARRANT HOLDER:



McDonnell Investment Loan Opportunity Ltd.

 	 
	 	By:  	McDonnell Investment Management,
 	 
	 	 	LLC, as Investment Manager 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                     /s/ Kathleen A. Zarn
 	 
	 	 	Name:  	Kathleen A. Zarn 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address:
	 	McDonnell Investment Management
	 	 
	 

	 	 	 	Alternative Credit Strategies	 	 
	 

	 	 	 	1515 W. 22nd Street — 11th	 	 
	 

	 	 	 	Floor	 	 
	 

	 	 	 	Oak Brook, IL 60523	 	 






	 	 	 	 	 
	 

	 	With a copy to (which shall not be
deemed notice for purposes of the
Agreement):
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 







66