INVESTORS’ RIGHTS
AGREEMENT
This Second
Amendment to Investors’ Rights Agreement (this “
Second Amendment ”) is made and entered into as of
December 20, 2006, among SIRION HOLDINGS, INC. (f/k/a Tenby
Pharma Inc.), a Delaware corporation (the “ Company
”), and the investors signatory hereto (each such investor is
a “ Investor ” and all such investors are,
collectively, the “ Investors ”). All
capitalized terms set forth in this Second Amendment but not
otherwise defined herein shall have the meaning ascribed thereto in
the Original Agreement.
WHEREAS, the
Company and the Investors have previously entered into that certain
Investors’ Rights Agreement dated September 13, 2006, as
amended by that certain First Amendment to Investors’ Rights
Agreement dated as of November 15, 2006 (collectively as
amended, the “ Original Agreement ”);
WHEREAS, the
Company and the Investors desire to amend certain provisions of the
Original Agreement to provide for an additional extension of the
required time period within which the Company is required to comply
with the requirements of Section 2 of the Original
Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the
Investors agree as follows:
1. New
Definitions . Section 1 of the Original Agreement is
hereby amended by adding the following new definitions thereto
(where the same would appear in alphabetical order), to
wit:
“
Commission ” means the U.S. Securities and Exchange
Commission, and any successor federal agency or commission that is
delegated administrative authority with respect to the federal
securities laws, and the staff thereof.”
“
Securities Act ” means the Securities Act of 1933, as
amended.”
2.
Definition of “Filing Date” . The term “
Filing Date ” as defined in Section 1 of the
Original Agreement is hereby amended by deleting the current
definition in its entirety and substituting the following therefor,
to wit:
“
Filing Date ” means, (a) with respect to the
initial Registration Statement required to be filed pursuant to
Section 2 , the earlier of ( i )
January 31, 2007, and ( ii ) the date that is the tenth
(10th) day following the closing by the Company of a private
offering of equity and/or debt securities pursuant to a financing
transaction that results in gross proceeds to the Company of at
least $5,000,000, and (b) with respect to any additional
Registration Statements that may be required pursuant to
Section 3 , the 30 th day following the date on which the Company
receives a valid request for registration pursuant to
Section 3 .”
3. No
Other Changes . Except as expressly amended hereby, the
Original Agreement shall remain in full force and effect and is
hereby ratified and affirmed by the parties.
4.
Counterparts . This Second Amendment may be executed in
counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same instrument. Any
party hereto may execute this Second Amendment by signing any one
counterpart. A facsimile copy (including telephonic, portable
digital format or other) of this Second Amendment and any
signature(s) hereon shall be considered for all purposes as an
original.
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