Amended and Restated Registration Rights Agreement



 Exhibit 10.2 
 Execution Copy 
 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT 
 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 13, 2007, by and among Devcon
International Corp., a Florida corporation, with headquarters located at 595 South Federal Highway, Suite 500, Boca Raton, Florida 33432 (the “Company”), and the undersigned buyers (each, a “Buyer”, and
collectively, the “Buyers”). 
 WHEREAS: 
 A. The Company’s board of directors authorized a new series of convertible preferred stock of the Company designated as Series A Convertible
Preferred Stock, the terms of which are set forth in the certificate of designation, dated as of October 16, 2006, for such series of preferred stock (the “Original Certificate of Designations”) (together with any convertible
preferred shares issued in replacement thereof in accordance with the terms thereof, the “Preferred Shares”), which Preferred Shares shall be convertible into the Company’s common stock, par value $0.10 per share (the
“Common Stock”), in accordance with the terms of the Certificate of Designations. 
 B. The Company and certain of the
Buyers (the “Original Buyers”) entered into that certain Securities Purchase Agreement, dated as of February 10, 2006 (the “Original Closing Date”) (as amended from time to time in accordance with its terms,
the “Original Securities Purchase Agreement”), whereby the Company, among other things, issued to each Buyer (i) at the Initial Closing (as defined in the Original Securities Purchase Agreement), warrants (the
“Warrants”), to acquire up to that number of additional shares of the Common Stock set forth opposite such Buyer’s name in column (5) of the Schedule of Buyers (as exercised, collectively, the “Warrant
Shares”) and (ii) at the Additional Closing (as defined in the Original Securities Purchase Agreement, that aggregate number of Preferred Shares set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers
(which aggregate number for all Buyers shall be 45,000) (as converted, collectively, the “Conversion Shares”). 
 B. On
March 30, 2007, the Company and certain Buyers entered into those certain Forbearance and Amendment Agreements (collectively, the “Forbearance Agreements”), whereby, among other things, the Company and each of such Buyers
agreed to amend and restate the Original Certificate of Designations as set forth in that certain Amended and Restated Certificate of Designations that is attached as Exhibit A thereto (the “Certificate of Designations”).

 C. The Preferred Shares may be entitled to dividends, which the Company, subject to certain conditions, was permitted to pay and
previously paid in shares of Common Stock (the “Dividend Shares”). 







 D. In connection with the Amended and Restated Securities Purchase Agreement by and among the parties
hereto of even date herewith (the “Securities Purchase Agreement”), the Company has agreed to redeem certain Warrants of the Buyers and permit the capitalization of certain dividends. 
 E. To induce the Buyers to execute and deliver the Forbearance Agreements and the Securities Purchase Agreement, the Company has agreed to execute and
deliver this Agreement which amends, and restates in full the terms and conditions of that certain Registration Rights Agreement, by and among the Company and the Original Buyers, dated as of the Original Closing Date whereby the Company agreed to
provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “1933 Act”), and applicable state securities laws.

 NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each of the Buyers hereby agree as follows: 
 1. Definitions. 
 Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth
in the Securities Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings: 
 a.
“Business Day” means any day other than Saturday, Sunday or any other day on which commercial banks in The City of New York are authorized or required by law to remain closed. 
 b. “Cutback Shares” means any of the Required Registration Amount of Registrable Securities not included in all Registration Statements
previously declared effective hereunder as a result of a limitation on the maximum number of shares of Common Stock of the Company permitted to be registered by the staff of the SEC, which cutback shall be applied pro rata to all Registrable
Securities, except to the extent prohibited by the SEC; provided, further, that, in order to determine any applicable Required Registration Amount, first the Warrant Shares shall be excluded on a pro rata basis until all of the Warrant Shares have
been excluded. 
 c. “Demand Registration” shall mean a registration required to be effected by the Company pursuant to
Section 2.1. 
 d. “Demand Registration Statement” shall mean a registration statement of the Company which covers the
Registrable Securities requested to be included therein pursuant to the provisions of Section 2.1 and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the prospectus
contained therein, all exhibits thereto and all material incorporated by reference (or deemed to be incorporated by reference) therein. 
  

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 e. “Effective Date” means the date the applicable Registration Statement is declared
effective by the SEC. 
 f. “Effectiveness Deadline” means the date which is 45 days after the applicable Filing Deadline
for the applicable Registration Statement, or if there is a full review of such Registration Statement by the SEC, 90 days after the applicable Filing Deadline for such Registration Statement. 
 g. “Filing Date” means the date on which the applicable Registration Statement is filed with the SEC. 
 h. “Holder” means any holder of Registrable Securities. 
 i. “Holders’ Counsel” shall mean, in the case of a Demand Registration, Schulte Roth & Zabel LLP or such other one firm of counsel (per registration) selected by the Initiating Holders
holding a majority of the Registrable Securities for which registration was requested in the Request. 
 j. “Initiating
Holders” shall mean, with respect to a particular registration, the Holders who initiated the Request for such registration. 
 k.
“Investor” means a Buyer or any transferee or assignee of the Preferred Shares or Warrants, as applicable, to whom a Buyer assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 9 and any transferee or assignee thereof to whom a transferee or assignee of the Preferred Shares or Warrants, as applicable, assigns its rights under this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section 9. 
 l. “Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and/or a government or any department or agency thereof. 
 m. “register,” “ registered,” and “registration” refer to a registration effected by preparing and filing one or more Registration Statements in compliance with the
1933 Act and the declaration of effectiveness of such Registration Statement(s) by the SEC. 
 n. “Registration Expenses”
shall mean any and all expenses incident to performance of or compliance with this Agreement by the Company and its subsidiaries, including, without limitation (i) all SEC, stock exchange, NASD and other registration, listing and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws and compliance with the rules of any stock exchange (including fees and disbursements of counsel in connection with such compliance and the
preparation of a blue sky memorandum and legal investment survey), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing, distributing, mailing and delivering any Registration Statement, any
prospectus, any underwriting agreements, transmittal letters, 

  

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securities sales agreements, securities certificates and other documents relating to the performance of or compliance with this Agreement, (iv) the fees
and disbursements of counsel for the Company, (v) the reasonable fees and disbursements of Holders’ Counsel, (vi) the fees and disbursements of all independent public accountants (including the expenses of any audit and/or “cold
comfort” letters) and the fees and expenses of other Persons, including experts, retained by the Company, (vii) the expenses incurred in connection with making road show presentations and holding meetings with potential investors to
facilitate the distribution and sale of Registrable Securities which are customarily borne by the issuer, (viii) any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, and (ix) premiums and other
costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities being registered; provided, however, Registration Expenses shall not include discounts and commissions payable to
underwriters, selling brokers, dealer managers or other similar Persons engaged in the distribution of any of the Registrable Securities; and provided further, that in any case where Registration Expenses are not to be borne by the Company,
such expenses shall not include salaries of Company personnel or general overhead expenses of the Company, auditing fees, premiums or other expenses relating to liability insurance required by underwriters of the Company or other expenses for the
preparation of financial statements or other data normally prepared by the Company in the ordinary course of its business or which the Company would have incurred in any event; and provided, further, that in the event the Company
shall, in accordance with Section 2.2 or Section 3(r) hereof, not register any securities with respect to which it had given written notice of its intention to register to Holders, notwithstanding anything to the contrary in the foregoing,
all of the costs incurred by such Holders in connection with such registration shall be deemed to be Registration Expenses. 
 o.
“Registrable Securities” means (i) the Conversion Shares issued or issuable upon conversion of the Preferred Shares, (ii) any Dividend Shares issued or issuable with respect to the Preferred Shares, (iii) any Warrant
Shares issued or issuable with respect to the Warrants, (iv) any share capital of the Company issued or issuable, with respect to the Preferred Shares, the Conversion Shares, the Warrants, the Warrant Shares or the Dividend Shares as a result
of any share split, share dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitations on conversions of the Preferred Shares or exercise of the Warrants and (v) any Common Stock of the Company issued or
issuable, with respect to the Conversion Shares, the Preferred Shares, the Warrants, the Warrant Shares or the Dividend Shares as a result of any stock split, stock dividend, recapitalization, exchange or similar event, without regard to any
limitations on conversion of the Preferred Shares or exercise of the Warrants, in each case other than Cutback Shares. 
 p.
“Registration Statement” means a registration statement or registration statements of the Company filed under the 1933 Act covering the Registrable Securities. 
 q. “Request” shall have the meaning set forth in Section 2.1(a). 
 r. “Required Holders” means the holders of at least a majority of the Registrable Securities. 
  

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 s. “Required Holders of the Registration” shall mean, with respect to a particular
registration, one or more Holders of Registrable Securities who would hold a majority of the Registrable Securities to be included in such registration. 
 t. “Required Registration Amount “ means 120% of the sum of (i) the number of Conversion Shares issued and issuable pursuant to the Certificate of Designation, as of the trading day immediately
preceding the applicable date of determination, (ii) the number of Dividend Shares issuable pursuant to the terms of the Certificate of Designation, determined as if issued as of the trading day immediately preceding the applicable date of
determination and assuming that all of the Preferred Shares remain outstanding until the Mandatory Date (as defined in the Certificate of Designations), and (iii) the number of Warrant Shares issued and issuable pursuant to the Warrants as of
the trading day immediately preceding the applicable date of determination, all subject to adjustment as provided in Section 2(e), without regard to any limitations on conversion of the Preferred Shares or exercise of the Warrants and in each
case other than Cutback Shares. 
 u. “Rule 415” means Rule 415 under the 1933 Act or any successor rule providing for
offering securities on a continuous or delayed basis. 
 v. “SEC” means the United States Securities and Exchange
Commission. 
 w. “Underwriters” shall mean the underwriters, if any, of the offering being registered under the Securities
Act. 
 x. “Underwritten Offering” shall mean a sale of securities of the Company to an Underwriter or Underwriters for
reoffering to the public. 
 y. “Withdrawn Demand Registration” shall have the meaning set forth in Section 2.1(a).

 z. “Withdrawn Request” shall have the meaning set forth in Section 2.1(a). 
 2. Registration. 
 2.1 Demand
Registration. 
 a. Right to Demand Registration. 
 (i) Subject to Section 2.1(c), at any time or from time to time after the date that is nine (9) months after the date hereof, the Required Holders shall have the right to request in writing that the Company
register all or part of such Required Holders’ Registrable Securities (a “Request”) by filing with the SEC a Demand Registration Statement. 
  

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 (1) Each Request shall specify the amount of Registrable Securities intended to be disposed of by such
Holders and the intended method of disposition thereof. 
 (2) As promptly as practicable, but no later than 10 days after receipt of a
Request, the Company shall give written notice of such requested registration to all other Holders of Registrable Securities. 
 (3) Subject
to Section 2.1(b), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders, and (ii) the Registrable Securities intended to be disposed of by any other
Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within ten
(10) days after the receipt of such written notice from the Company. 
 (4) Right to Demand Registration. The Company, as
expeditiously as possible within sixty (60) days following a Request (the “Filing Deadline”), shall use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the
1933 Act of the Registrable Securities which the Company has been so requested to register by all such Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended
methods of disposition thereof specified in such Request or further requests. 
 (5) The Company shall use its best efforts to have such
Demand Registration Statement declared effective by the SEC as soon as practicable thereafter but in no event later than the Effectiveness Deadline and to keep such Demand Registration Statement continuously effective until such time as all of such
Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller(s) thereof set forth in such Demand Registration Statement; provided, such period need not extend beyond nine months after the
effective date of the Demand Registration Statement; and provided, further, that with respect to any Demand Registration Statement, such period need not extend beyond the Registration Period, and which period, in any event, shall terminate
when all Registrable Securities covered by such Demand Registration Statement have been sold (but not before the expiration of the 90 day period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable) (the
“Demand Registration Period”). 
 (ii) A Request may be withdrawn prior to the filing of the Demand Registration Statement
by the Required Holders of the Registration (a “Withdrawn Request”) and a Demand Registration Statement may be withdrawn prior to the effectiveness thereof by the Required Holders of the Registration (a “Withdrawn Demand
Registration”) and such withdrawals shall be treated as a Demand Registration which shall have been effected pursuant to this Section 2.1, unless the Required Holders of Registrable Securities to be included in such Registration
Statement reimburse the Company for its reasonable out-of-pocket 

  

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Registration Expenses relating to the preparation and filing of such Demand Registration Statement (to the extent actually incurred); provided;
however, that if a Withdrawn Request or Withdrawn Demand Registration is made because of a material adverse change in the business or financial condition of the Company, then such withdrawal shall not be treated as a Demand Registration
effected pursuant to this Section 2.1 (and shall not be counted toward the number of Demand Registrations to which such Holders are entitled), and the Company shall pay all Registration Expenses in connection therewith. Any Holder requesting
inclusion in a Demand Registration may, at any time prior to the effective date of the Demand Registration Statement (and for any reason), revoke such request by delivering written notice to the Company revoking such requested inclusion. 

(iii) The registration rights granted pursuant to the provisions of this Section 2.1 shall be in addition to the registration rights granted
pursuant to the other provisions of Section 2 hereof. 
 b. Priority in Demand Registrations. If a Demand Registration involves
an Underwritten Offering, and the sole or lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder requesting registration) on or before the date five days prior to
the date then scheduled for such offering that, in its opinion, the amount of Registrable Securities, if any, requested to be included in such Demand Registration exceeds the number which can be sold in such offering within a price range acceptable
to the Required Holders of the Registration (such writing to state the basis of such opinion and the approximate number of Registrable Securities which may be included in such offering), the Company shall include in such Demand Registration, to the
extent of the number which the Company is so advised may be included in such offering without such effect, the Registrable Securities requested to be included in the Demand Registration by the Holders allocated, pro rata among the Investors based on
the number of Registrable Securities held by each Investor (on an as converted, fully-diluted basis and without giving effect to any exercise or conversion limitations contained in any such convertible or exercisable securities held by any such
party). In the event the Company shall not, by virtue of this Section 2.1(b), include in any Demand Registration all of the Registrable Securities of any Holder requesting to be included in such Demand Registration, such Holder, upon written
notice to the Company given within five days of the time such Holder first is notified of such matter, may reduce the amount of Registrable Securities it desires to have included in such Demand Registration, whereupon only the Registrable
Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities to be included in such Demand Registration. 
 c. Limitations on Registrations. The rights of Holders of Registrable Securities to request Demand Registrations pursuant to Section 2.1(a)
are subject to the following limitations: 
 (1) in no event shall the Company be required to 

  

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effect a Demand Registration unless the reasonably anticipated aggregate offering price to the public of all Registrable Securities for which registration
has been requested by Holders, together with any shares sold by the Company for its own account, will be at least $3,000,000; 
 (2) in no
event shall the Company be required to effect a Demand Registration prior to six months after a prior Demand Registration Statement is declared effective by the SEC; 
 (3) in no event shall the Company be required to register an amount that exceeds the amount of Registrable Securities permitted by the SEC; and 
 (4) in no event shall the Company be required to effect, in the aggregate, more than two Demand Registrations in any consecutive twelve-month period;
provided, however, that such number shall be increased to the extent the Company does not include in what would otherwise be the final registration the number of Registrable Securities requested to be registered by the Holders by
reason of Section 2.1(b). 
 d. Underwriting. 
 (1) Selection of Underwriters. Notwithstanding anything to the contrary contained in Section 2.1(a), if the Initiating Holders holding a
majority of the Registrable Securities for which registration was requested in the Request so elect, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a firm commitment Underwritten Offering;
and such Initiating Holders may require that all Persons (including other Holders) participating in such registration sell their Registrable Securities to the Underwriters at the same price and on the same terms of underwriting applicable to the
Initiating Holders. If any Demand Registration involves an Underwritten Offering, the sole or managing Underwriters and any additional investment bankers and managers to be used in connection with such registration shall be selected by the
Initiating Holders holding a majority of the Registrable Securities (so long as such Underwriter is not affiliated with any such majority holders) for which registration was requested in the Request, subject to the approval of the Company (such
approval not to be unreasonably withheld or delayed). 
 (2) Underwriting Agreements. If requested by the sole or lead managing
Underwriter for any Underwritten Offering effected pursuant to a Demand Registration the Company shall enter into a customary underwriting agreement with the Underwriters for such offering, such agreement to be reasonably satisfactory in substance
and form to the Required Holders of the Registration. 
 (3) Holders of Registrable Securities to be Parties to Underwriting
Agreement. The Holders of Registrable Securities to be distributed by Underwriters in an Underwritten Offering contemplated by Section 2.1(a) shall be parties to the underwriting agreement between the Company and such Underwriters and may,
at such Holders’ 

  

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option, require that any or all of the conditions precedent to the obligations of such Underwriters under such underwriting agreement be conditions precedent
to the obligations of such Holders of Registrable Securities. No Holder shall be required to make any representations or warranties to, or agreements with, the Company or the Underwriters other than representations, warranties or agreements
regarding such Holder, such Holder’s Registrable Securities and such Holder’s intended method of disposition. 
 (4)
Participation in Underwritten Registration. Notwithstanding anything herein to the contrary, no Person may participate in any Underwritten Offering hereunder unless such Person (i) agrees to sell its securities on the same terms and
conditions provided in any underwritten arrangements approved by the Persons entitled hereunder to approve such arrangement and (ii) accurately completes and executes in a timely manner all questionnaires, powers of attorney, indemnities,
custody agreements, underwriting agreements and other documents customary for such an offering and reasonably required under the terms of such underwriting arrangements. 
 (5) In no event shall the Company be required to effect more than two Underwritten Offerings. 
 e.
Registration of Other Securities. Whenever the Company shall effect a Demand Registration, no securities other than the Registrable Securities shall be covered by such registration unless (a) the Required Holders of the Registration
shall have consented in writing to the inclusion of such other securities and (b) no holder of Registrable Securities is unable to include any of its Registrable Securities requested for inclusion in such registration by reason of
Section 2.1(b). 
 f. Effective Registration Statement; Suspension. A Demand Registration Statement shall not be deemed
to have become effective (and the related registration will not be deemed to have been effected) (i) unless it has been declared effective by the SEC and remains effective in compliance with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities covered by such Demand Registration Statement for the Demand Registration Period, (ii) if the offering of any Registrable Securities pursuant to such Demand Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, or (iii) if, in the case of an Underwritten Offering, the conditions to closing specified in an underwriting agreement to which the
Company is a party are not satisfied other than by the sole reason of any breach or failure by the Holders of Registrable Securities or are not otherwise waived. By 9:30 a.m. New York time on the date following any Effective Date, the Company shall
file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement. 
 g. Other Registrations. During the period (i) beginning on the date of a Request and (ii) ending on the date that is 90 days after the date that a Demand Registration Statement filed pursuant to such
Request has been declared effective by the SEC or, 

  

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if the Required Holders of the Registration shall withdraw such Request or such Demand Registration Statement, on the date of such Withdrawn Request or such
Withdrawn Registration Statement, the Company shall not, without the consent of the Required Holders of the Registration, file a registration statement pertaining to any other securities of the Company (other than a registration relating solely to
the sale of securities to participants in a Company employee stock or similar plan on Form S-8). 
 h. Registration Statement Form.
Registrations under this Section 2.1 shall be on such appropriate registration form of the SEC (i) as shall be selected by the Initiating Holders holding a majority of the Registrable Securities for which registration was requested in the
Request, and (ii) which shall be available for the sale of Registrable Securities in accordance with the intended method or methods of disposition specified in the requests for registration. The Company agrees to include in any such
Registration Statement all information which any selling Investor Holder, upon advice of counsel, shall reasonably request. 
 2.2 Other
Provisions Concerning Registration. 
 a. Allocation of Registrable Securities. In no event shall the Company include any
securities other than Registrable Securities on any Registration Statement without the prior written consent of the Required Holders. The initial number of Registrable Securities included in any Registration Statement and any increase in the number
of Registrable Securities included therein shall first be allocated pro rata among the Investors based on the number of Registrable Securities held by each Investor at the time such Registration Statement is declared effective by the SEC. In the
event that an Investor sells or otherwise transfers any of such Investor’s Registrable Securities, each transferee that becomes an Investor shall be allocated a pro rata portion of the then remaining number of Registrable Securities included in
such Registration Statement for such transferor. Any shares of Common Stock included in a Registration Statement and which remain allocated to any Person which ceases to hold any Registrable Securities covered by such Registration Statement shall be
allocated to the remaining Investors, pro rata based on the number of Registrable Securities then held by such Investors which are covered by such Registration Statement. If the SEC requires that the Company register less than the amount of shares
of Common Stock originally included on any Registration Statement at the time it was filed, the Registrable Securities on such registration statement and any other securities allowed to be registered on such Registration Statement (in accordance
with this paragraph) shall be decreased on a pro rata basis; provided, that following any such decrease, at the request of the Required Holders, such Required Holders may elect to withdraw such Registration Statement and thereafter the Request for
such Registration Statement shall not be deemed to constitute a Request for purposes of Section 2.1 hereof. 
 b. Legal Counsel.
Subject to Section 5 hereof, the Required Holders shall have the right to select one legal counsel to review any registration pursuant to this Section 2 (“Legal Counsel”), which shall be Schulte Roth & Zabel LLP
or such other counsel as thereafter designated by the Required Holders. The Company and Legal Counsel shall reasonably cooperate with each other in regards to the performance of the Company’s obligations under this Agreement. 
  

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 c. Ineligibility for Form S-3. In the event that Form S-3 is not available for the registration
of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form reasonably acceptable to the Required Holders and (ii) undertake to register the
Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the
Registrable Securities has been declared effective by the SEC. 
 d. Sufficient Number of Shares Registered. Subject to the
limitations set forth in Section 2.1(c), in the event the number of shares available under a Registration Statement filed pursuant to Section 2.1 is insufficient to cover all of the Registrable Securities required to be covered by such
Registration Statement or an Investor’s allocated portion of the Registrable Securities pursuant to Section 2.2(a), the Company shall amend the applicable Registration Statement, or file a new Registration Statement (on the short form
available therefor, if applicable), or both, so as to cover at least the Required Registration Amount as of the trading day immediately preceding the date of the filing of such amendment or new Registration Statement, in each case, as soon as
practicable, but in any event not later than fifteen (15) days after the necessity therefor arises. The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable
following the filing thereof. For purposes of the foregoing provision, the number of shares available under a Registration Statement shall be deemed “insufficient to cover all of the Registrable Securities” if at any time the number of
shares of Common Stock available for resale under the Registration Statement is less than the product determined by multiplying (i) the Required Registration Amount as of such time by (ii) 0.90. The calculation set forth in the foregoing
sentence shall be made without regard to any limitations on the conversion of the Preferred Shares or the exercise of the Warrants and such calculation shall assume that the Preferred Shares are then convertible into shares of Common Stock at the
then prevailing Conversion Rate (as defined in the Certificate of Designations) and that the Warrants are then exercisable for shares of Common Stock at the then prevailing Exercise Price (as defined in the applicable Warrant). 
 e. Effect of Failure to File and Obtain and Maintain Effectiveness of Registration Statement. If (i) a Registration Statement covering all
of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the applicable Filing Deadline (a “Filing Failure”) or
(B) filed with the SEC but not declared effective by the SEC on or before the applicable Effectiveness Deadline (an “Effectiveness Failure”) or (ii) on any day after the applicable Effective Date, sales of all of the
Registrable Securities required to be included on such Registration Statement cannot be made (other than during an Allowable Grace Period (as defined in Section 3(r)) pursuant to such Registration Statement (including, without limitation,
because of a failure to keep such Registration Statement effective, to disclose such 

  

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information as is necessary for sales to be made pursuant to such Registration Statement, a suspension or delisting of the Common Stock on its principal
trading market or exchange, or to register a sufficient number of shares of Common Stock) (a “Maintenance Failure”) then, as partial relief for the damages to any Investor by reason of any such delay in or reduction of its ability
to sell the underlying shares of Common Stock (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to each Investor which holds Registrable Securities an amount in cash equal to one percent
(1.0%) of the aggregate Purchase Price (as such term is defined in the Securities Purchase Agreement) of such Investor’s Registrable Securities included in such Registration Statement on each of the following dates: (i) on every
thirtieth day (pro rated for periods totaling less than thirty days) after a Filing Failure until such Filing Failure is cured; (ii) on every thirtieth day (pro rated for periods totaling less than thirty days) after an Effectiveness Failure
until such Effectiveness Failure is cured; and (iii) on every thirtieth day (pro rated for periods totaling less than thirty days) after a Maintenance Failure until such Maintenance Failure is cured. The Company shall also pay the reasonable
fees of Legal Counsel to enforce the provisions hereof. The payments to which an Investor shall be entitled pursuant to this Section 2.2(e) are referred to herein as “Registration Delay Payments.” In the event the Company fails
to make Registration Delay Payments in a timely manner, such Registration Delay Payments shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial months) until paid in full. Registration Delay Payments
shall be paid on the day of the Filing Failure, Effectiveness Failure and the initial day of a Maintenance Failure, as applicable, and thereafter on the earlier of (I) the thirtieth day after the event or failure giving rise to the Registration
Delay Payments has occurred and (II) the third Business Day after the event or failure giving rise to the Registration Delay Payments is cured. Notwithstanding anything herein or in the Securities Purchase Agreement to the contrary, in no event
shall the aggregate amount of Registration Delay Payments (other than Registration Delay Payments payable pursuant to events that are within the control of the Company) exceed, in the aggregate, 10% of the Purchase Price of the Registrable
Securities issued on the Closing Date (as defined in the Securities Purchase Agreement) pursuant to the Securities Purchase Agreement. 
 2.3 Piggyback Registration.  
 a. Piggyback Rights. If the Company proposes to file a registration statement with the
Commission with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, for its own account or for the account of any stockholder of the Company (other
than a registration statement on Form S-4 or Form S-8 or their successors or any other form for a limited similar purpose or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another
Person), the Company shall, at least thirty days prior to such filing, give written notice to all Holders of its intention to do so and, upon the written request of any Holder or Holders given within twenty days of the receipt of such notice (which
request shall state the intended method of disposition of such Registrable Securities), the Company shall use its best efforts to cause the Registrable Securities that such Holder or Holders request the Company to register to be included in such
registration and shall use its reasonable best efforts to cause the managing Underwriter or Underwriters (if any) of a proposed 

  

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Underwritten Offering to permit such Registrable Securities to be included in such registration on the same terms and conditions as any similar securities of
the Company, in each case to the extent necessary to permit their sale or other disposition in accordance with the intended methods of distribution specified in the request of the Holder or Holders; provided that the Company shall have the right to
postpone or withdraw any registration effected pursuant to this Section 2.3 without obligation to the Holders (any such registration statement which includes Registrable Securities, a “Piggy-Back Registration Statement”).

 b. Underwritten Offerings. In connection with any Underwritten Offering under this Section 2.3 (but not including
Underwritten Offerings under Section 2.1), the notice to the Holders shall state whether such offering is an Underwritten Offering and the Company shall not be required to include any Registrable Securities in such Underwriting Offering unless
the Holders requesting inclusion of such Registrable Securities accept the terms of the underwriting as reasonably agreed upon between the Company and the managing Underwriter or Underwriters, selected by the Company. Each Holder that has requested
that Registrable Securities held by it be included in such Registration Statement shall (together with the Company and the other Holders distributing the securities through such underwriting) enter into such underwriting agreement as reasonably
agreed upon between the Company and the managing Underwriter or Underwriters. In connection with any Underwritten Offering under this Section 2.3 (but not including Underwritten Offerings under Section 2.1), if in the reasonable and good
faith opinion of the managing Underwriter or Underwriters, the registration of all, or part of, the Registrable Securities requested to be included in such registration and any other securities to be included in such registration jeopardize the
success of the offering by the Company or the holders of securities initiating such registration (the “Demanding Holders”), then: (i) in the case of an Underwritten Offering by the Company, (A) the Company shall not be
cutback and (B) the Registrable Securities and any other securities requested for inclusion pursuant to similar piggyback rights shall be reduced first pro rata (on an as-converted, fully-diluted basis and without giving effect to any exercise
or conversion limitations contained in any such convertible or exercisable securities held by any such party) in accordance with the number of securities that each such Person has requested be included in the registration, regardless of the number
of securities held by each such Person; and (ii) in the case of an Underwritten Offering by a Demanding Holder, (A) the Demanding Holder (and other parties that are subject to the same registration rights agreement with such Demanding
Holder) shall not be cutback and (B) the Registrable Securities and any other securities requested for inclusion pursuant to similar piggyback rights shall be reduced first pro rata (on an as-converted, fully-diluted basis and without giving
effect to any exercise or conversion limitations contained in any such convertible or exercisable securities held by any such party) in accordance with the number of securities that each such Person has requested be included in the registration,
regardless of the number of securities held by each such Person. If any Holder disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company and the managing Underwriter. 
 Section 2.4 Underwriter Status. Neither the Company nor any Subsidiary (as defined in the Securities Purchase Agreement) or affiliate
thereof shall identify any Buyer as an 

  

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underwriter in any public disclosure or filing with the SEC or any Principal Market (as defined in the Securities Purchase Agreement) or Eligible Market (as
defined in the Certificate of Designations) and any Buyer being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has under this Agreement or any other Transaction Document (as defined in the Securities Purchase
Agreement). 
 3. Related Obligations. 
 At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to Section 2.1 or 2.3, the Company will use its best efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations: 
 a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the applicable Registrable Securities and use its best efforts to cause such Registration Statement relating to the Registrable Securities
to become effective as soon as practicable after such filing (but in no event later than the applicable Effectiveness Deadline). Subject to Allowable Grace Periods (as defined below), the Company shall keep each Registration Statement effective
pursuant to Rule 415 at all times until the earlier of (i) the date as of which all of the Investors (other than any Investors who are “affiliates” of the Company as such term is used in Rule 144(k) promulgated under the Securities
Act) may sell all of the Registrable Securities covered by such Registration Statement without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the 1933 Act and (ii) the date on which the Investors shall have
sold all of the Registrable Securities covered by such Registration Statement (the “Registration Period”). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any 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 the case of prospectuses, in the light of the circumstances
in which they were made) not misleading. The Company shall submit to the SEC, within two (2) Business Days after the later of the date that (i) the Company learns that no review of a particular Registration Statement will be made by the
staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, and (ii) the approval of Legal Counsel pursuant to Section 3(c) (which approval is immediately sought), a request for
acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request. 
 b. Subject to Section 3(r) of this Agreement, the Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with
such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period,
comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such 

  

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Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this
Section 3(b)) by reason of the Company filing a report on Form 10-Q, Form 10-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall have incorporated such report by
reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such
Registration Statement. 
 c. The Company shall (A) permit Legal Counsel to review and comment upon (i) a Registration Statement at
least five (5) Business Days prior to its filing with the SEC (and for at least two (2) Business Days after any final, material changes are made to any draft thereof) (provided that the Filing Deadline shall be extended by the time taken
by Legal Counsel beyond such specified periods in exercising its right to review the Registration Statement pursuant to this Section 3) and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (B) not file any Registration Statement or amendment or
supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of
Legal Counsel, which consent shall not be unreasonably withheld. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to
any Registration Statement (except for reports previously filed pursuant to the Securities Exchange Act of 1934, as amended), (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any
amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the
prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company’s obligations pursuant to this Section 3. 
 d. The Company shall furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge, (i) promptly
after the same is prepared and filed with the SEC, at least one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an
Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, one (1) copy of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such
other number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time and/or in order to facilitate the
disposition of the Registrable Securities owned by such Investor. 
  

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 e. The Company shall use its reasonable best efforts to (i) register and qualify, unless an
exemption from registration and qualification applies, the resale by Investors of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky” laws of all applicable jurisdictions in the United
States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the
Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall
promptly notify Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale
under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. 
 f. The Company shall notify Legal Counsel and each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of
such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 3(r), promptly prepare a
supplement or amendment to such Registration Statement to correct such untrue statement or omission and deliver one (1) copy of such supplement or amendment to Legal Counsel and each Investor (or such other number of copies as Legal Counsel or
such Investor may reasonably request). The Company shall also promptly notify Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile or e-mail on the same day of such effectiveness and by overnight mail),
(ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate. 
 g. The Company shall use its best efforts to prevent the issuance of any stop order or other
suspension of effectiveness of a Registration Statement, or the suspension of the 

  

 16 








 
qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of
such order or suspension at the earliest possible moment and to notify Legal Counsel and each Investor who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose. 
 h. If any Investor may be required under applicable securities law to be
described in the Registration Statement as an underwriter, at the reasonable request of any Investor, the Company shall furnish to such Investor, on the date of the effectiveness of the Registration Statement and thereafter from time to time on such
dates as an Investor may reasonably request (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the Investors, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to the Investors. 
 i. If any Investor may be required under applicable
securities law to be described in the Registration Statement as an underwriter, the Company shall make available for inspection by (i) any Investor, (ii) Legal Counsel and (iii) one firm of accountants or other agents retained by the
Investors (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed
necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree in writing to hold in strict
confidence and not to make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the
disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (b) the release of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement of which
the Inspector has knowledge. Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and
allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and any
Investor) shall be deemed to limit the Investors’ ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations. 
 j. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless
(i) disclosure of such 

  

 17 








 
information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is
sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, such information. 
 k. The Company shall use its best efforts either to (i) cause all of the
Registrable Securities covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) secure designation and quotation of all of the Registrable Securities covered by a Registration Statement on the Nasdaq National Market, or (iii) if, despite the Company’s best
efforts to satisfy the preceding clause (i) or (ii) the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on The Nasdaq Capital Market for such Registrable Securities and,
without limiting the generality of the foregoing, to use its best efforts to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. (“NASD”) as such with respect to such
Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(k). 
 l. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing
the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investors may reasonably request and registered in such names as the
Investors may request. 
 m. If requested by an Investor, the Company shall as soon as practicable after receipt of notice from such Investor
and subject to Section 3(r) hereof, (i) incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests to be included therein relating to the sale and distribution of Registrable
Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in
such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement
or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities. 
  

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 n. The Company shall use its best efforts to cause the Registrable Securities covered by a Registration
Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities. 
 o. The Company shall make generally available to its security holders as soon as practical, but not later than one hundred five (105) days after the
close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later than the first day of the
Company’s fiscal quarter next following the effective date of the Registration Statement. 
 p. The Company shall otherwise use its best
efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. 
 q. Within two
(2) Business Days after a Registration Statement which covers Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such
Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as
Exhibit A. 
 r. Notwithstanding anything to the contrary herein, at any time after the Registration Statement has been declared
effective by the SEC, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company, in the best
interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of material,
non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the Investors) and the date on which the Grace Period will begin, and
(ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed twenty (20) consecutive days and during any three hundred sixty five (365) day period such Grace
Periods shall not exceed an aggregate of sixty (60) days and the first day of any Grace Period must be at least five (5) trading days after the last day of any prior Grace Period (each, an “Allowable Grace Period”). For
purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i) and shall end on and include the later of the date the Investors receive
the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company
shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary, the Company shall
cause its transfer 

  

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agent to deliver unlegended shares of Common Stock to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in
connection with any sale of Registrable Securities with respect to which an Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration Statement (unless an exemption from
such prospectus delivery requirement exists), prior to the Investor’s receipt of the notice of a Grace Period and for which the Investor has not yet settled. 
 4. Obligations of the Investors. 
 a. At least five (5) Business Days prior to the first
anticipated filing date of a Registration Statement, the Company shall notify each Investor in writing of the information the Company requires from each such Investor if such Investor elects to have any of such Investor’s Registrable Securities
included in such Registration Statement. It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Investor that such
Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect and maintain
the effectiveness of the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. 
 b. Each Investor, by such Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Investor has notified the Company in writing of such Investor’s election to exclude all of such Investor’s Registrable Securities
from such Registration Statement. 
 c. Each Investor agrees that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(g) or the first sentence of 3(f), such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until such
Investor’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(g) or the first sentence of 3(f) or receipt of notice that no supplement or amendment is required or the event contemplated by
Section 3(g) is no longer applicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of an Investor in accordance with the terms of the
Securities Purchase Agreement in connection with any sale of Registrable Securities with respect to which an Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any
event of the kind described in Section 3(g) or the first sentence of 3(f) and for which the Investor has not yet settled. 
 d. Each
Investor covenants and agrees that it will comply with the prospectus delivery requirements of the 1933 Act as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement. 
  

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 5. Expenses of Registration. 
 The Company shall pay all Registration Expenses in connection with any Registration Statement hereunder, whether or not such registration shall become
effective or is withdrawn and whether or not any or all Registrable Securities originally requested to be included in such registration are with drawn or otherwise ultimately not included in such registration. In addition to the foregoing, the
Company shall also reimburse the Investors for the fees and disbursements of Legal Counsel in connection with the registration, filing or qualification pursuant to Sections 2 and 3 of this Agreement which amount shall be limited to $35,000 per
Registration Statement. 
 6. Indemnification. 
 In the event any Registrable Securities are included in a Registration Statement under this Agreement: 
 a.
To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor, the directors, officers, members, partners, employees, agents, representatives of, and each Person, if any, who controls
any Investor within the meaning of the 1933 Act or the 1934 Act (each, an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts
paid in settlement or expenses, joint or several, (collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before
any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an Indemnified Person is or may be a party thereto (“Indemnified Damages”), to which any of them
may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration
Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered
(“Blue Sky Filing”), or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus if used prior to the effective date of such Registration Statement, or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement
thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading, (iii) any
violation or alleged violation by the Company of the 1933 Act, the 1934 Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities
pursuant to a Registration Statement or (iv) any violation of this Agreement (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”). Subject to Section 6(c), the 

  

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Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are due and payable, for any reasonable legal fees or other
reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply
to a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by such Indemnified Person for such Indemnified Person expressly for
use in connection with the preparation of the Registration Statement or any such amendment thereof or supplement thereto; and (ii) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably withheld or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the
transfer of the Registrable Securities by the Investors pursuant to Section 9. 
 b. In connection with any Registration Statement in
which an Investor is participating, each such Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors, each
of its officers who signs the Registration Statement and each Person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act (each, an “Indemnified Party”), against any Claim or Indemnified Damages to
which any of them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case to the extent, and only to the extent, that such Violation
occurs in reliance upon and in conformity with written information furnished to the Company by such Investor expressly for use in connection with such Registration Statement; and, subject to Section 6(c), such Investor will reimburse any legal
or other expenses reasonably incurred by an Indemnified Party in connection with investigating or defending any such Claim; provided, however, that the indemnity agreement contained in this Section 6(b) and the agreement with respect to
contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld or delayed;
provided, further, however, that the Investor shall be liable under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9. 
 c. Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6 of
notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in respect thereof is to be made against any indemnifying
party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with
any other indemnifying party 

  

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similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the
Indemnified Party, as the case may be; provided, however, that an Indemnified Person or Indemnified Party shall have the right to retain its own counsel with the fees and expenses of not more than one counsel for all such Indemnified Person or
Indemnified Party to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Indemnified Person or Indemnified Party and the indemnifying party would
be inappropriate due to actual or potential differing interests between such Indemnified Person or Indemnified Party and any other party represented by such counsel in such proceeding; provided further, that the indemnifying party shall not be
responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for all such Indemnified Person or Indemnified Party. In the case of an Indemnified Person, legal counsel referred to in the immediately preceding
sentence shall be selected by the Investors holding at least a majority in interest of the Registrable Securities included in the Registration Statement to which the Claim relates. The Indemnified Party or Indemnified Person shall cooperate
reasonably with the indemnifying party in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or Claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto.
No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent.
No indemnifying party shall, without the prior written consent of the Indemnified Party or Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release from all liability in respect to such Claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the extent that the
indemnifying party is prejudiced in its ability to defend such action. 
 d. No Person involved in the sale of Registrable Securities who is
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to indemnification from any Person involved in such sale of Registrable Securities who is not
guilty of fraudulent misrepresentation. 
 e. The indemnification required by this Section 6 shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages are incurred. 
  

 23 








 f. The indemnity agreements contained herein shall be in addition to (i) any cause of action or
similar right of the Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law. 
 7. Contribution. 
 To the extent any
indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that: (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Section 6 of this Agreement,
(ii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with such sale shall be entitled to contribution from
any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by
such seller from the sale of such Registrable Securities pursuant to such Registration Statement. 
 8. Reports Under the 1934 Act.

 With a view to making available to the Investors the benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or
regulation of the SEC that may at any time permit the Investors to sell securities of the Company to the public without registration (“Rule 144”), the Company agrees to: 
 a. make and keep public information available, as those terms are understood and defined in Rule 144; 
 b. file with the SEC in a timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long as the
Company remains subject to such requirements (it being understood that nothing herein shall limit the Company’s obligations under Section 4(c) of the Securities Purchase Agreement) and the filing of such reports and other documents is
required for the applicable provisions of Rule 144; and 
 c. furnish to each Investor so long as such Investor owns Registrable Securities,
promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the 1933 Act and the 1934 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 publicly available via EDGAR, and (iii) such other information as may be reasonably requested to permit the Investors to sell such securities pursuant
to Rule 144 without registration. 
  

 24 








 9. Assignment of Registration Rights. 
 The rights under this Agreement shall be automatically assignable by the Investors to any transferee of all or any portion of such Investor’s
Registrable Securities if: (i) the Investor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment; (ii) the Company
is, within a reasonable time after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which such registration rights are being
transferred or assigned; (iii) immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the 1933 Act and applicable state securities laws; (iv) at or
before the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein; (v) such transfer
shall have been made in accordance with the applicable requirements of the Securities Purchase Agreement; and (vi) such transfer shall have been conducted in accordance with all applicable federal and state securities laws. 
 10. Amendment of Registration Rights. 
 Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Required
Holders; provided, however, that any such amendment or waiver that would have an adverse and disproportionate effect on any Investor must be approved by such Investor. Any amendment or waiver effected in accordance with this
Section 10 shall be binding upon each Investor and the Company. No such amendment shall be effective to the extent that it applies to less than all of the holders of the Registrable Securities. No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of any of this Agreement unless the same consideration also is offered to all of the parties to this Agreement. 
 11. Miscellaneous. 
 a. A Person is
deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the
same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from such record owner of such Registrable Securities. 
 b. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one Business Day after deposit with a
nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be: 
  

 25 









									
		 	 If to the Company:
	 	
				
		 		 	Devcon International Corp.	 	
		 		 	595 South Federal Highway	 	
		 		 	Suite 500	 	
		 		 	Boca Raton, Florida 33432	 	
		 		 	Telephone:	  	(561) 955-7300	 	
		 		 	Facsimile:	  	(561) 955-7333	 	
		 		 	Attention:	  	Robert Farenhem	 	
			
		 	With a copy (for informational purposes only) to:	 	
				
		 		 	Greenberg Traurig, P.A.	 	
		 		 	1221 Brickell Avenue	 	
		 		 	Miami, Florida 33131	 	
		 		 	Telephone:	  	(305) 579-0756	 	
		 		 	Facsimile:	  	(305) 961-5756	 	
		 		 	Attention:	  	Robert L. Grossman, Esq.	 	
			
		 	If to the Transfer Agent:	 	
				
		 		 	Continental Stock Transfer and Trust	 	
		 		 	17 Battery Place, 8th Floor	 	
		 		 	New York, NY 10004	 	
		 		 	Telephone:	  	(212) 509-4000 x304	 	
		 		 	Facsimile:	  	(212) 616-7616	 	
		 		 	Attention:	  	Mark Zimkind	 	
			
		 	 If to Legal Counsel:
	 	
				
		 		 	 Schulte Roth & Zabel LLP
	 	
		 		 	 919 Third Avenue
	 	
		 		 	 New York, New York 10022
	 	
		 		 	Telephone:	  	 (212) 756-2000
	 	
		 		 	Facsimile:	  	 (212) 593-5955
	 	
		 		 	Attention:	  	 Eleazer N. Klein, Esq.
	 	

 If to a Buyer, to its address and facsimile number set forth on the Schedule of Buyers attached hereto (as updated
from time to time), with copies to such Buyer’s representatives as set forth on the Schedule of Buyers, or to such other address and/or facsimile number and/or to the attention of such other Person as the recipient party has specified by
written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically


  

 26 








 
or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of
such transmission or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i),
(ii) or (iii) above, respectively. 
 c. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or
delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. 
 d. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any
other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New
York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY. 
 e. This Agreement, the other Transaction Documents (as defined in the Securities Purchase
Agreement) and the instruments referenced herein and therein constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement, the other Transaction Documents and the instruments referenced herein and therein supersede all prior agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof. 
  

 27 








 f. Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of each of the parties hereto. 
 g. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. 
 h. This Agreement may be executed in identical counterparts,
each of which shall be deemed an original but all of which shall constitute one and the same agreement. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement. 
 i. Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby. 
 j. All consents and other determinations required to be made by
the Investors pursuant to this Agreement shall be made, unless otherwise specified in this Agreement, by the Required Holders. 
 k. The
language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of strict construction will be applied against any party. 
 l. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person. 
 m. The obligations of each Investor hereunder are several and not joint
with the obligations of any other Investor, and no provision of this Agreement is intended to confer any obligations on any Investor vis-à-vis any other Investor. Nothing contained herein, and no action taken by any Investor pursuant hereto,
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 herein. 
 * * * * * * 
  

 28 








 IN WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this
Amended and Restated Registration Rights Agreement to be duly executed as of the date first written above. 
  

			
	COMPANY:
	
	DEVCON INTERNATIONAL CORP.
		
	 By:
	 	 /s/ Richard C. Rochon

	 Name:
	 	 Richard C. Rochon

	 Title:
	 	 Acting Chief Executive Officer










 IN WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this
Amended and Restated Registration Rights Agreement to be duly executed as of the date first written above. 
  

			
	BUYERS:
	
	HBK MAIN STREET INVESTMENTS L.P.
		
	 By:
	 	HBK Services LLC
		 	Investment Advisor
		
	 By:
	 	 /s/ V. Baker Gentry, Jr.

	 Name:
	 	 V. Baker Gentry, Jr.

	 Title:
	 	Authorized Signatory









 IN WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this
Amended and Restated Registration Rights Agreement to be duly executed as of the date first written above. 
  

			
	CS EQUITY II LLC
		
	 By:
	 	 /s/ Keith D. Reuben

	 Name:
	 	 Keith D. Reuben

	 Title:
	 	 Authorized Signatory










 SCHEDULE OF BUYERS 
  

									
	 Buyer
	  	 	  	 Buyer Address
 and Facsimile Number
	  	 	  	 Buyer’s Representative’s Address
 and Facsimile Number

	HBK Main Street Investments L.P.	  		  	 c/o HBK Services LLC
 300 Crescent Court, Suite
700
 Dallas, TX 75201
 Attn: Legal (PP)
 Telephone: 214-758-6107
 Facsimile: 214-758-1207
	  		  	 Schulte Roth & Zabel LLP
 919 Third Avenue

New York, NY 10022
 Attn: Eleazer Klein, Esq.
 Facsimile: (212) 593-5955
 Telephone: (212) 756-2000

					
	Castlerigg Master Investments Ltd.	  		  	 c/o Sandell Asset Management
 40 West 57th St

26th Floor
 New York, NY 10019
 Attention: Cem Hacioglu / Matthew Pliskin

 Fax: 212-603-5710
 Telephone: 212-603-5700
 Residence: British Virgin Islands
	  		  	McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10017
Attention: Stephen Older, Esq.
Facsimile: (212) 547-5444
Telephone: (212) 547-5649
					
	CS Equity II LLC	  		  	 c/o CapitalSource Finance, LLC
 4445 Willard Avenue, 12th
Floor
 Chevy Chase, Maryland 20815
 Attention: HSB, Portfolio
Manager
 Telephone: (301) 841-2700
 Fax: (301)
841-2360
	  		  	 Katten Muchin Rosenman LLP
 525 West Monroe
Street
 Chicago, Ill. 60661
 Attention: Jeffrey L. Elegant, Esq.
and
Mark R. Grossman, Esq.
Facsimile: (312) 577-4408
Telephone: (312) 902-5200









 EXHIBIT A 
 FORM OF NOTICE OF EFFECTIVENESS 
 OF REGISTRATION STATEMENT 
  

					
	Continental Stock Transfer and Trust
	 17 Battery Place, 8th Floor

	New York, NY 10004
	 Telephone:
	 	(212) 509-4000 x304
	 Facsimile:
	 	(212) 616-7616
	 Attention:
	 	Mark Zimkind
			
		 	Re:	 	Devcon International Corp.

 Ladies and Gentlemen: 
 [We are][I am] counsel to Devcon International Corp., a Florida corporation (the “Company”), and have represented the Company in connection with that certain Amended and Restated Securities Purchase
Agreement (the “Securities Purchase Agreement”) entered into by and among the Company and the buyers named therein (collectively, the “Holders”) pursuant to which the Company issued to the Holders preferred shares
(the “Preferred Shares”) convertible into the Company’s common stock, $0.10 par value (the “Common Stock”), warrants exercisable for shares of Common Stock (the “Warrants”). Pursuant to
the Securities Purchase Agreement, the Company also has entered into a Registration Rights Agreement with the Holders (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register the
Registrable Securities (as defined in the Registration Rights Agreement), including the shares of Common Stock issuable upon conversion of the Preferred Shares and the shares of Common Stock issuable upon exercise of the Warrants, under the
Securities Act of 1933, as amended (the “1933 Act”). In connection with the Company’s obligations under the Registration Rights Agreement, on
                         , 200    , the Company filed a Registration Statement on Form
S-3 (File No. 333-                    ) (the “Registration Statement”) with the Securities and Exchange Commission (the
“SEC”) relating to the Registrable Securities which names each of the Holders as a selling shareholder thereunder. 
 In
connection with the foregoing, [we][I] advise you that a member of the SEC’s staff has advised [us][me] by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF
EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and [we][I] have no knowledge, after telephonic inquiry of a member of the SEC’s staff, that any stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC and the Registrable Securities are available for resale under the 1933 Act pursuant to the Registration Statement. 
  

 1 








 Unless we inform you otherwise, this letter shall serve as our standing opinion to you that the shares of
Common Stock are freely transferable by the Holders pursuant to the Registration Statement. You need not require further letters from us to effect any future legend-free issuance or reissuance of shares of Common Stock to the Holders as contemplated
by the Company’s Irrevocable Transfer Agent Instructions dated February     , 2006. 
  

			
	 Very truly yours,

	
	 [ISSUER’S COUNSEL]

		
	 By:
	 	  



  

	CC:	[LIST NAMES OF HOLDERS] 

  

 2 








 EXHIBIT B 
 SELLING SHAREHOLDERS 
 The shares of Common Stock being offered by the selling shareholders are
issuable upon conversion of the convertible preferred shares, upon exercise of the warrants and in payment of certain dividend requirements as set forth in the Certificate of Designation. For additional information regarding the issuance of those
convertible preferred shares and warrants, see “Private Placement of Convertible Preferred Shares and Warrants” above. We are registering the shares of Common Stock in order to permit the selling shareholders to offer the shares for resale
from time to time. Except for the ownership of the preferred shares and warrants issued pursuant to the Securities Purchase Agreement, the selling shareholders have not had any material relationship with us within the past three years. 

The table below lists the selling shareholders and other information regarding the beneficial ownership of the shares of Common Stock by each of the
selling shareholders. The second column lists the number of shares of Common Stock beneficially owned by each selling shareholder, based on its ownership of the convertible preferred shares and warrants, as of
                    , 200    , assuming conversion of all convertible preferred shares and exercise of the warrants
held by the selling shareholders on that date, without regard to any limitations on conversions or exercise. 
 The third column lists the
shares of Common Stock being offered by this prospectus by the selling shareholders. 
 In accordance with the terms of a registration rights
agreement with the selling shareholders, this prospectus generally covers the resale of at least 120%, of the sum of (i) the number of shares of Common Stock issuable upon conversion of the convertible preferred shares (and the dividends
accrued and payable thereunder) as of the trading day immediately preceding the date the registration statement is initially filed with the SEC, (ii) the number of shares of Common Stock issuable upon payment of the dividend shares as of the
trading day immediately preceding the date the registration statement is initially filed with the SEC assuming that all of the Preferred Shares remain outstanding through the Mandatory Date (as defined in the Certificate of Designations) and
(iii) the number of shares of Common Stock issuable upon exercise of the related warrants as of the trading day immediately preceding the date the registration statement is initially filed with the SEC. Because the conversion price of
the convertible preferred shares and the exercise price of the warrants may be adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this prospectus. The fourth column assumes the
sale of all of the shares offered by the selling shareholders pursuant to this prospectus. 
 Under the terms of the certificate of
designations and the warrants, a selling shareholder may not convert the preferred shares or exercise the warrants to the extent such conversion or 

  

 3 








 
exercise would cause such selling shareholder, together with its affiliates, to beneficially own a number of shares of Common Stock which would exceed 9.99%
or 4.99% as applicable of our then outstanding shares of Common Stock following such conversion or exercise, excluding for purposes of such determination shares of Common Stock issuable upon conversion of the convertible preferred shares which have
not been converted and upon exercise of the warrants which have not been exercised. The number of shares in the second column does not reflect this limitation. The selling shareholders may sell all, some or none of their shares in this offering. See
“Plan of Distribution.” 
  

 4 









							
	 Name of Selling Shareholder
	  	Number of Shares of
Common Stock Owned
Prior to Offering	  	Maximum Number of Shares
of Common Stock to be Sold
Pursuant to this Prospectus	  	Number of Shares of
Common Stock Owned
After Offering
	 HBK Main Street Investments L.P. (1)
	  		  		  	0
				
	 Castlerigg Master Investments Ltd. (2)
	  		  		  	0
				
	 CS Equity II LLC (3)
	  		  		  	



	(1)	HBK Investments L.P., a Delaware limited partnership, has shared voting and dispositive power over the Registrable Securities pursuant to an Investment Management Agreement between
HBK Investments L.P. and HBK Main Street Investments L.P. HBK Investments L.P. has delegated discretion to vote and dispose of the Registrable Securities to HBK Services LLC. The following individuals may be deemed to have control over HBK
Investments L.P.: Jamiel A. Akhtar, Richard L. Booth, David C. Haley, Laurence H. Lebowitz, and William E. Rose. 


	(2)	Sandell Asset Management Corp. is the investment manager of Castlerigg Master Investment Ltd. (“Castlerigg”) and has shared voting and dispositive power over the
securities owned by Castlerigg. Sandell Asset Management Corp. and Thomas E. Sandell, its sole shareholder, disclaim beneficial ownership of the securities owned by Castlerigg. 


	(3)	CapitalSource Finance LLC may be deemed to have sole voting and sole dispositive power over the securities pursuant to its relationship with CS Equity II LLC. Additionally Keith
Reuben may be deemed to have control over CapitalSource. Keith Reuben disclaims beneficial ownership of the securities owned by CapitalSource. 

  

 1 








 PLAN OF DISTRIBUTION 
 We are registering the shares of Common Stock issuable upon conversion of the convertible preferred shares, upon exercise of the warrants and in payment of certain dividend requirements to permit the resale of these
shares of Common Stock by the holders of the convertible preferred shares and warrants from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling shareholders of the shares of Common
Stock. We will bear all fees and expenses incident to our obligation to register the shares of Common Stock. 
 The selling shareholders may
sell all or a portion of the shares of Common Stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of Common Stock are sold through underwriters
or broker-dealers, the selling shareholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of Common Stock may be sold in one or more transactions at fixed prices, at prevailing market prices at
the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, 
  

	 	•	 	 on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; 


  

	 	•	 	 in the over-the-counter market; 


  

	 	•	 	 in transactions otherwise than on these exchanges or systems or in the over-the-counter market; 


  

	 	•	 	 through the writing of options, whether such options are listed on an options exchange or otherwise; 


  

	 	•	 	 ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; 


  

	 	•	 	 block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the
transaction; 


  

	 	•	 	 purchases by a broker-dealer as principal and resale by the broker-dealer for its account; 


  

	 	•	 	 an exchange distribution in accordance with the rules of the applicable exchange; 


  

	 	•	 	 privately negotiated transactions; 


  

	 	•	 	 short sales; 










	 	•	 	 sales pursuant to Rule 144; 


  

	 	•	 	 broker-dealers may agree with the selling securityholders to sell a specified number of such shares at a stipulated price per share; 



 

	 	•	 	 a combination of any such methods of sale; and 


  

	 	•	 	 any other method permitted pursuant to applicable law. 


 If the selling shareholders effect such transactions by selling shares of Common Stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the
form of discounts, concessions or commissions from the selling shareholders or commissions from purchasers of the shares of Common Stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of Common Stock or otherwise, the selling shareholders may enter
into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of Common Stock in the course of hedging in positions they assume. The selling shareholders may also sell shares of Common Stock short and deliver
shares of Common Stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling shareholders may also loan or pledge shares of Common Stock to broker-dealers that in turn
may sell such shares. 
 The selling shareholders may pledge or grant a security interest in some or all of the convertible preferred shares
or warrants or shares of Common Stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of Common Stock from time to time pursuant to this prospectus or
any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of selling shareholders to include the pledgee, transferee or other successors in
interest as selling shareholders under this prospectus. The selling shareholders also may transfer and donate the shares of Common Stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be
the selling beneficial owners for purposes of this prospectus. 
 The selling shareholders and any broker-dealer participating in the
distribution of the shares of Common Stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of Common Stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of
Common Stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling shareholders and any discounts, commissions
or concessions allowed or reallowed or paid to broker-dealers. 
  

 2 








 Under the securities laws of some states, the shares of Common Stock may be sold in such states only
through registered or licensed brokers or dealers. In addition, in some states the shares of Common Stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification
is available and is complied with. 
 There can be no assurance that any selling shareholder will sell any or all of the shares of Common
Stock registered pursuant to the shelf registration statement, of which this prospectus forms a part. 
 The selling shareholders and any
other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act,
which may limit the timing of purchases and sales of any of the shares of Common Stock by the selling shareholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares
of Common Stock to engage in market-making activities with respect to the shares of Common Stock. All of the foregoing may affect the marketability of the shares of Common Stock and the ability of any person or entity to engage in market-making
activities with respect to the shares of Common Stock. 
 We will pay all expenses of the registration of the shares of Common Stock pursuant
to the registration rights agreement, estimated to be $[                    ] in total, including, without limitation, Securities and Exchange
Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that a selling shareholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling
shareholders against liabilities, including some liabilities under the Securities Act, in accordance with the registration rights agreements, or the selling shareholders will be entitled to contribution. We may be indemnified by the selling
shareholders against civil liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling shareholder specifically for use in this prospectus, in accordance with the related
registration rights agreements, or we may be entitled to contribution. 
 Once sold under the shelf registration statement, of which this
prospectus forms a part, the shares of Common Stock will be freely tradable in the hands of persons other than our affiliates. 
  

 3