EX-10.1 AMENDMENT TO INVESTORS' RIGHTS AGREEMENT



 





Exhibit
10.1





SECOND AMENDMENT TO



INVESTORS’ RIGHTS AGREEMENT




     This Second Amendment to Investors’ Rights Agreement (this “Second Amendment”) is made and
entered into as of December 20, 2006, among SIRION HOLDINGS, INC. (f/k/a Tenby Pharma Inc.), a
Delaware corporation (the “Company”), and the investors signatory hereto (each such investor is a
“Investor” and all such investors are, collectively, the “Investors”). All capitalized terms set
forth in this Second Amendment but not otherwise defined herein shall have the meaning ascribed
thereto in the Original Agreement.



     WHEREAS, the Company and the Investors have previously entered into that certain Investors’
Rights Agreement dated September 13, 2006, as amended by that certain First Amendment to Investors’
Rights Agreement dated as of November 15, 2006 (collectively as amended, the “Original Agreement”);



     WHEREAS, the Company and the Investors desire to amend certain provisions of the Original
Agreement to provide for an additional extension of the required time period within which the
Company is required to comply with the requirements of Section 2 of the Original Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for
other good and valuable consideration the receipt and adequacy of which are hereby acknowledged,
the Company and the Investors agree as follows:



     1. New Definitions. Section 1 of the Original Agreement is hereby amended by adding
the following new definitions thereto (where the same would appear in alphabetical order), to wit:



     
“Commission” means the U.S. Securities and Exchange Commission, and any successor federal
agency or commission that is delegated administrative authority with respect to the federal
securities laws, and the staff thereof.”



     
“Securities Act” means the Securities Act of 1933, as amended.”



     2. Definition of “Filing Date”. The term “Filing Date” as defined in Section 1 of the
Original Agreement is hereby amended by deleting the current definition in its entirety and
substituting the following therefor, to wit:




 “Filing Date” means, (a) with respect to the initial Registration Statement required to
be filed pursuant to Section 2, the earlier of (i) January 31, 2007, and (ii) the
date that is the tenth (10th) day following the closing by the Company of a private
offering of equity and/or debt securities pursuant to a financing transaction that results
in gross proceeds to the Company of at least $5,000,000, and (b) with respect to any
additional Registration Statements that may be required pursuant to Section 3, the
30th day following the date on which the Company receives a valid request for
registration pursuant to Section 3.”



 









 





     3. No Other Changes. Except as expressly amended hereby, the Original Agreement shall
remain in full force and effect and is hereby ratified and affirmed by the parties.



     4. Counterparts. This Second Amendment may be executed in counterparts, each of which
shall constitute an original and all of which together shall constitute one and the same
instrument. Any party hereto may execute this Second Amendment by signing any one counterpart. A
facsimile copy (including telephonic, portable digital format or other) of this Second Amendment
and any signature(s) hereon shall be considered for all purposes as an original.



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     IN WITNESS WHEREOF, the parties have executed this Investors’ Rights Agreement as of the date
first written above.



	 	 	 	 	 	 	 
	 	 	SIRION HOLDINGS, INC.	 	 
	 	 	(f/k/a Tenby Pharma Inc.)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Barry Butler 	 	 
	 

	 	 	 	 

Name: Barry Butler
	 	 
	 

	 	 	 	Title: CEO and President	 	 






Address for Notice:




3110 Cherry Palm Drive, Suite 340

Tampa, Florida 33619

Facsimile No.: (813) 496-7328

Telephone No.: (813) 496-7325

Attn: Barry Butler




with a copy (which shall not constitute notice) to:




Hill, Ward and Henderson, P.A.

101 East Kennedy Boulevard, Suite 3700

Tampa, Florida 33602

Facsimile No.: (813) 221-2900

Telephone No.: (813) 222-8705

Attn: Reid Haney, Esq.




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	 	 	NORTH SOUND LEGACY
INSTITUTIONAL FUND LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	North Sound Capital LLC; Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Andrew B. David	 	 
	 

	 	 	 	 

Name: Andrew B. David
	 	 
	 

	 	 	 	Title: General Counsel	 	 






Address for Notice:




20 Horseneck Lane

Greenwich, Connecticut 06830

Facsimile No.: (203) 340-5701

Telephone No.: (203) 340-5784

Attn: Andrew B. David, Esq.




with a copy (which shall not constitute notice) to:




Proskauer Rose LLP

1585 Broadway

New York, New York 10036

Facsimile No.: (212) 969-2900

Telephone No.: (212) 969-3000

Attn: Adam J. Kansler, Esq.




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	 	 	NORTH SOUND LEGACY INTERNATIONAL LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	North Sound Capital LLC; Investment Advisor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Andrew B. David	 	 
	 

	 	 	 	 

Name: Andrew B. David
	 	 
	 

	 	 	 	Title: General Counsel	 	 






Address for Notice:




20 Horseneck Lane

Greenwich, Connecticut 06830

Facsimile No.: (203) 340-5701

Telephone No.: (203) 340-5784

Attn: Andrew B. David, Esq.




with a copy (which shall not constitute notice) to:




Proskauer Rose LLP

1585 Broadway

New York, New York 10036

Facsimile No.: (212) 969-2900

Telephone No.: (212) 969-3000

Attn: Adam J. Kansler, Esq.




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	 	 	AVALON VENTURES VI, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Avalon Ventures GP, LLC	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kevin J. Kinsella	 	 
	 

	 	 	 	 

Name: Kevin J. Kinsella
	 	 
	 

	 	 	 	Title: Managing Member	 	 






Address for Notice:




c/o Sytera II, Inc.

888 Prospect Street, Suite 320

La Jolla, CA 92037

Facsimile No.: (858) 348-2183

Telephone No.:

Attn:




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	 	 	AVALON VENTURES VI GP FUND, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Avalon Ventures GP, LLC	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kevin J. Kinsella	 	 
	 

	 	 	 	 

Name: Kevin J. Kinsella
	 	 
	 

	 	 	 	Title: Managing Member	 	 






Address for Notice:




c/o Sytera II, Inc.

888 Prospect Street, Suite 320

La Jolla, CA 92037

Facsimile No.: (858) 348-2183

Telephone No.:

Attn:




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	 	 	AVALON VENTURES VII, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Avalon Ventures VII GP, LLC	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kevin J. Kinsella 	 	 
	 

	 	 	 	 

Name: Kevin J. Kinsella
	 	 
	 

	 	 	 	Title: Managing Member	 	 






Address for Notice:




c/o Sytera II, Inc.

888 Prospect Street, Suite 320

La Jolla, CA 92037

Facsimile No.: (858) 348-2183

Telephone No.:

Attn:




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	 	/s/ Barry Butler
 

Barry Butler
	 	 






Address for Notice:




c/o Tenby Pharma Inc.

3110 Cherry Palm Drive, Suite 340

Tampa, FL 33619

Facsimile No.: (813) 496-7328

Telephone No.: (813) 496-7325

Attn: Barry Butler




with a copy (which shall not constitute notice) to:




Hill, Ward and Henderson, P.A.

101 East Kennedy Boulevard, Suite 3700

Tampa, FL 33602

Facsimile No.: (813) 221-2900

Telephone No.: (813) 222-8705

Attn: Reid Haney, Esq.




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	 	/s/ Roger Vogel
 

Roger Vogel
	 	 






Address for Notice:




c/o Tenby Pharma Inc.

3110 Cherry Palm Drive, Suite 340

Tampa, FL 33619

Facsimile No.: (813) 496-7328

Telephone No.: (813) 496-7325

Attn: Roger Vogel




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	 	 	WIDDER FAMILY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kenneth J. Widder 	 	 
	 

	 	 	 	 

Name: Kenneth J. Widder, M.D.
	 	 
	 

	 	 	 	Title: Partner	 	 






Address for Notice:




c/o Sytera II, Inc.

888 Prospect Street, Suite 320

La Jolla, CA 92037

Facsimile No.: (858) 348-2183

Telephone No.:

Attn: Kenneth J. Widder, M.D.




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	 	 	THE LICHTER FAMILY TRUST	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jay Lichter 	 	 
	 

	 	 	 	 

Name: Jay Lichter, Ph.D.
	 	 
	 

	 	 	 	Title: Trustee	 	 






Address for Notice:




c/o Sytera II, Inc.

888 Prospect Street, Suite 320

La Jolla, CA 92037

Facsimile No.: (858) 348-2183

Telephone No.:

Attn: Jay Lichter, Ph.D.




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	 	 	PHARMABIO DEVELOPMENT INC.	 	 
	 	 	     (D/B/A NOVAQUEST)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kerry E. Zook 	 	 
	 

	 	 	 	 

Name: Kerry E. Zook
	 	 
	 

	 	 	 	Title: Vice President	 	 






Address for Notice:




4709 Creekstone Drive

Riverbirch Building, Suite 200

Durham, NC 27703

Facsimile No.: (919) 998-2090

Telephone No.: (919) 998-2000

Attn: President




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