INVESTOR RIGHTS AGREEMENT
INVESTOR
RIGHTS AGREEMENT
This
Investor Rights Agreement (this “Agreement”) is made and entered into as of June
23, 2006, by and among DrugMax, Inc., a Nevada corporation (the “Company”), and
Deerfield Special Situations Fund, L.P., a Delaware limited partnership, and
Deerfield Special Situations Fund International Limited, a British Virgin
Islands company (collectively, the “Purchasers”).
W
I T N E S S E T H
WHEREAS,
pursuant to a Note and Warrant Purchase Agreement, dated as of the date hereof,
among the Company and the Purchasers (the “Purchase
Agreement”),
the
Company has agreed to issue and sell to the Purchasers promissory notes in
the
aggregate principal amount of $10 million (collectively, the “Notes”),
and
eight warrants (the “Warrants”)
to
purchase an aggregate of 16,500,000 shares of the Company’s Common Stock (the
“Shares”);
WHEREAS,
the
obligations of the Company under the Notes are secured by a security interest
in
the assets of the Company pursuant to the Security Agreement, dated as of the
date hereof, by the Company in favor of the Purchasers (the “Security
Agreement”);
WHEREAS,
to
induce the Purchasers to execute and deliver the Purchase Agreement, the Company
has agreed to provide to the Purchasers and its permitted assigns certain
registration rights under the Securities Act of 1933, as amended (the
“Securities
Act”),
and
applicable state securities laws; and
WHEREAS,
this
Agreement, together with the Purchase Agreement, the Notes, the Warrants and
the
Security Agreement are hereinafter collectively referred to as the “Transaction
Documents”.
NOW
THEREFORE,
in
consideration of the foregoing and other good and valuable consideration, the
parties hereto agree as follows:
1. Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
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(a)
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“Claims”
shall have the meaning ascribed to it in Section
6(a).
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(b)
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“Exchange
Act”
shall mean the Securities Exchange Act of 1934, as
amended.
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(c)
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"Holder"
or “Holders”
mean a holder or holders of Registrable
Securities.
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(d)
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“Indemnified
Person”
shall mean a party entitled to indemnification pursuant to Section
6.
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(e)
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“Registrable
Securities”
shall mean (i) the Shares, (ii) the shares of Common Stock or other
securities issued or issuable to the Purchasers or their permitted
transferees or designees (a) upon exercise of the Warrants, or (b)
upon
any distribution with respect to, any exchange for or any replacement
of
the Warrants, or (c) upon any conversion, exercise or exchange of
any
securities issued in connection with any such distribution, exchange
or
replacement; (iii) securities issued or issuable upon any stock split,
stock dividend, recapitalization or similar event with respect to
such
shares of Common Stock; and (iv) any other security issued as a dividend
or other distribution with respect to, in exchange for, or in replacement
of, the securities referred to in the preceding
clauses.
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(f)
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“Registration
Period”
shall have the meaning ascribed to it in Section
2(ii).
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(g)
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“Registration
Statement”
means a registration statement or registration statements of the
Company
filed under the Securities Act covering Registrable
Securities.
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(h)
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“Register,”
“Registered”
and “Registration”
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and pursuant to Rule
415
under the Securities Act or any successor rule providing for offering
securities on a continuous basis (“Rule
415”),
and the declaration or ordering of effectiveness of such registration
statement by the United States Securities and Exchange Commission
(the
“Commission”).
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(i)
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“Rule
144”
shall have the meaning ascribed to it in Section
8.
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(j)
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“Securities
Act”
shall mean the Securities Act of 1933, as
amended.
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(k)
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“Violations”
shall have the meaning ascribed to it in Section
6(a).
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Capitalized
terms defined in the introductory paragraph or the recitals to this Agreement
shall have the respective meanings therein provided. Capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth in
the
Purchase Agreement or elsewhere in the Transaction Documents.
2. Mandatory
Registration.
(i) The
Company shall prepare and file with the Securities and Exchange Commission
(the
“Commission”)
not
later than the 60th day (the “Filing
Date”)
after
the Closing Date under the Purchase Agreement a Registration Statement or
Registration Statements (as necessary) on Form S-3 covering the resale of all
of
the Registrable Securities, in an amount sufficient to cover the resale of
the
shares issuable upon exercise of the Warrants. In the event that Form S-3 is
unavailable for such a registration, the Company shall use such other form
as is
available and appropriate for such a registration. Any Registration Statement
prepared pursuant hereto shall register for resale at least that number of
shares of Common Stock equal to the Shares. The Company shall use its reasonable
best efforts to cause the Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing thereof, but in
any
event prior to the 240th
day
after the Filing Date (such day referred to herein as the “Effective
Date”).
(ii) The
Company shall use its reasonable best efforts to keep each Registration
Statement effective pursuant to Rule 415 at all times until such date as is
the
earlier of (i) the date on which all of the Registrable Securities have been
sold pursuant to a Registration Statement and (ii) the date on which the
Registrable Securities (in the opinion of counsel to the Purchasers and
acceptable to legal counsel for the Company) may be immediately sold without
restriction (including without limitation as to volume restrictions by each
holder thereof) and without registration under the Securities Act (the
“Registration
Period”).
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3. Obligations
of the Company.
In
connection with the registration of the Registrable Securities, the Company
shall do each of the following:
(a) Prepare
and file with the Commission the Registration Statements required by Section
2
of this Agreement and such amendments (including post-effective amendments)
and
supplements to the Registration Statements and the prospectuses used in
connection with the Registration Statements, as may be necessary to keep the
Registration effective at all times during the Registration Period, and, during
the Registration Period, to comply with the provisions of the Securities Act
with respect to the disposition of all of the Registrable Securities until
such
time as all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof as
set
forth in the Registration Statements;
(b) If
the
Registrable Securities are included in a Registration Statement, the Company
shall promptly furnish, after such Registration Statement is prepared, filed
with the Commission, publicly disseminated and distributed by the Company,
to
the Holders and their legal counsel, a copy of the Registration Statement,
each
preliminary prospectus, each final prospectus, and all amendments and
supplements thereto and such other documents as the Holders may reasonably
request in order to facilitate the disposition of its Registrable
Securities;
(c) As
soon
as practicable for the Company and its counsel, but no later than five business
days after receipt thereof, furnish to the Holders and their counsel copies
of
appropriate correspondence between the Company and the Commission with respect
to any registration statement or amendment or supplement thereto filed pursuant
to this Agreement;
(d) Use
its
reasonable best efforts to (i) register and qualify the Registrable Securities
covered by the Registration Statement under such other securities or blue sky
laws, if applicable, of such jurisdictions as any Holder may reasonably request,
(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 at
all
times 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 necessary
or advisable to qualify the Registrable Securities for sale in such
jurisdictions, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection
(d) be obligated to be so qualified, or to subject itself to taxation in any
such jurisdiction, or to consent to general service of process in any such
jurisdiction;
(e) If
required, list such securities on the Nasdaq Stock Market (“Nasdaq”)
or
such other national securities exchanges on which any securities of the Company
are then listed, and file any filings required by Nasdaq and/or such other
filings;
(f) Notify
the Holders and (if requested by the Holders) confirm such advice in writing,
(i) when or if the prospectus or any prospectus supplement or post-effective
amendment has been filed with the Commission, and, with respect to the
Registration Statement or any post-effective amendment, when the same has been
declared effective by the Commission, (ii) of any request by the Commission
for
amendments or supplements to the Registration Statement or the prospectus or
for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (v) of the happening of
any
event as a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;
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(g) If
any
fact contemplated by clause (v) of paragraph (f), above, shall exist, prepare
a
supplement or post-effective amendment to the Registration Statement or the
related prospectus or any document incorporated therein by reference or file
any
other required document so that, as thereafter delivered to the purchasers
of
the Registrable Securities the prospectus will not contain an untrue statement
of material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(h) Cooperate
with each Holder to facilitate the timely preparation and delivery of
certificates for the Registrable Securities to be offered pursuant to the
Registration Statement and to enable such certificates for the Registrable
Securities to be in such denominations or amounts, as the case may be, as each
Holder may reasonably request, and registered in such names as each Holder
may
request; and, within three business days after a Registration Statement which
includes Registrable Securities is ordered effective by the Commission, the
Company shall deliver, and shall cause legal counsel selected by the Company
to
deliver, to the transfer agent for the Registrable Securities (with copies
to
the Holders) an appropriate instruction and opinion of such counsel,
satisfactory to the Company, and the Holders and their legal
counsel;
(i) Enter
into customary agreements and take all other customary and appropriate actions
in order to expedite or facilitate the disposition of such Registrable
Securities.
(j) The
Company shall hold in confidence and not make any disclosure of information
concerning a Holder provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws and/or
the requests of any self-regulatory organizations, (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 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 or any
other agreement. The Company agrees that it shall, upon learning that disclosure
of such information concerning a Holder is sought in or by a court or
governmental body of competent jurisdiction or though other means, give prompt
notice to such Holder prior to making such disclosure, and allow such Holders,
at its expense, to undertake appropriate action to prevent disclosure of, or
to
obtain a protective order for, such information.
(k) In
the
event that, in the judgment of the Company, it is advisable to suspend use
of a
prospectus included in a Registration Statement due to pending material
developments or other events that have not yet been publicly disclosed and
as to
which the Company believes public disclosure would be detrimental to the
Company, the Company shall notify all Holders to such effect, and, upon receipt
of such notice, each such Holder shall immediately discontinue any sales of
Registrable Securities pursuant to such Registration Statement until such Holder
has received copies of a supplemental or amended prospectus or until such Holder
is advised in writing by the Company that then current prospectus may be used
and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such prospectus.
Notwithstanding anything to the contrary herein, the Company shall not exercise
its rights under this Section 3(k) to suspend of Registrable Securities for
a
period in excess of 45 days consecutively or 90 days in any 365-day
period.
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4. Obligations
of the Holders to Provide Information.
In
connection with the registration of the Registrable Securities, each Holder
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 requested by the Company to effect
the registration of such Registrable Securities, and the Holders shall execute
any and all such documents in connection with such registration as the Company
and its legal counsel may reasonably request. At least five business days prior
to the first anticipated filing date of the Registration Statement, the Company
shall notify the Holders of the information the Company requires of the Holders
to be included in the Registration Statement. The Company shall not be required
to include the Registrable Securities of a Holder in a Registration Statement
who fails to furnish the Company with any such information except where such
failure does not materially prejudice the Company’s ability to register such
Registrable Securities. The Holders shall give sufficient notice to the Company
before selling any Registrable Securities so that the Company may prepare and
file any necessary post-effective amendments to the Registration Statement
or
such additional filings as shall be necessary or desirable.
5. Expenses
of Registration.
All
expenses, other than underwriting discounts and commissions and other fees
and
expenses of investment bankers, other brokerage commissions and legal fees
of
the Holders, incurred in connection with registrations, filings or
qualifications pursuant to Section 3, but including, without limitation, all
registration, listing, and qualification fees, printing and accounting fees,
and
the fees and disbursements of counsel for the Company, with respect to the
Registration Statement filed pursuant hereto, shall be borne by the Company.
6. Indemnification.
In the
event any Registrable Securities are included in a Registration Statement under
this Agreement:
(a) The
Company will indemnify and hold harmless the Holders, each of their respective
officers, directors, members, managers, partners and shareholders, and each
person, if any, who controls a Holder within the meaning of the Securities
Act
or the Exchange Act against any losses, claims, damages, liabilities or expenses
(joint or several) incurred (collectively, “Claims”)
to
which any of them may become subject under the Securities Act, the Exchange
Act
or otherwise, 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 contained
in
the Registration Statement or any post-effective amendment thereof or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances in which they were made, 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
Commission) or the omission to state therein any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation under the Securities Act, the Exchange
Act or any state securities law (the matters in foregoing clauses (i) through
(iii) being, collectively, “Violations”).
The
Company shall, subject to the provisions of Section 6(c) below, reimburse each
Indemnified Person, promptly as such expenses are incurred and are due and
payable, for any reasonable legal and other reasonable costs, expenses and
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise, including without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or defending
any such action, suit, proceeding or investigation (whether or not in connection
with litigation in which an Indemnified Person is a party), incurred by it
in
connection with the investigation or defense of any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a) shall not (i) apply to any Claim arising out
of
or based upon any untrue statement or omission made in a Registration Statement,
preliminary prospectus or prospectus, or any amendment or supplement, in each
case, in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Indemnified Person expressly for use
in
connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto; (ii) be available to the extent that
such Claim is based upon a failure of a Holder to deliver or to cause to be
delivered the prospectus made available by the Company, if such prospectus
was
timely made available by the Company pursuant to Section 3(b) hereof; or (iii)
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. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an Indemnified Person
and shall survive the transfer of the Registrable Securities by the Purchasers
pursuant to Section 9.
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(b) Each
Holder will indemnify the Company and its officers and directors and each person
if any, who controls the Company within the meaning of the Securities Act or
the
Exchange Act against any Claims 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 or on behalf of such Holder, expressly for use in connection
with the preparation of the Registration Statement, preliminary prospectus
or
prospectus (including any modifications, amendments or supplements thereto)
provided, however, that in no event shall any indemnity by a Holder under this
Section 6 exceed the amount of the net proceeds received by such Holder in
connection with the offering effected through such Registration
Statement.
(c) Promptly
after receipt by an Indemnified Person under this Section 6 of notice of the
commencement of any action (including any governmental action), such Indemnified
Person 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 that the indemnifying party
so desires, jointly with any other indemnifying party similarly notified, to
assume control of the defense thereof with counsel mutually satisfactory to
the
indemnifying party and the Indemnified Person; provided, however, that an
Indemnified Person shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the Indemnified Person, the
representation of the Indemnified Person by counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person and any other party represented by such counsel
in such proceeding. In such event, the Company shall pay for only one separate
legal counsel for the Holders, and such legal counsel shall be selected by
the
Holders. The failure to deliver written notice to an indemnifying party within
a
reasonable time after the commencement of any such action shall not relieve
such
indemnifying party of any liability to the Indemnified Person under this Section
6, except to the extent that the indemnifying party is materially prejudiced
in
its ability to defend such action. 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 such expense, loss, damage or liability is
incurred and is due and payable.
(d) No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Person
of an unconditional and irrevocable release from all liability in respect of
such claim or litigation and no Indemnified Party shall consent to entry of
any
judgment or settle such claim or litigation without the prior written consent
of
the indemnifying party, which consent shall not be unreasonably withheld,
conditioned or delayed.
6
7. Contribution.
To the
extent any indemnification by an indemnifying party is prohibited or limited
under applicable law, the indemnifying party agrees, in lieu of indemnifying
such Indemnified Person to such extent, to contribute to the amount paid or
payable by an Indemnified Person as a result of such loss, claim, damage,
liability or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the Indemnified
Person on the other hand in connection with the statements or omissions which
resulted in such Claim, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and the Indemnified Person shall
be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
on
which such Claim is based relates to information supplied by the indemnifying
party or by the Indemnified Person, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. Notwithstanding the foregoing, (a) no contribution shall be made
under
circumstances where the payor would not have been liable for indemnification
under the fault standards set forth in Section 6, (b) no seller of Registrable
Securities guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any seller
of Registrable Securities who was not guilty of such fraudulent
misrepresentation and (c) contribution by any seller of Registrable Securities
shall be limited in amount to the net proceeds received by such seller from
the
sale of such Registrable Securities. The Company and the Holders agree that
it
would not be just and equitable if contribution pursuant to this Section 7
were
determined by pro rata
allocation (even if the Holders and any other party were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section. No party
shall be liable for contribution with respect to any action, suit, proceeding
or
claim settled without its prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
8. Reports
Under Exchange Act.
With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation of the
Commission that may at any time permit the Holders to sell securities of the
Company to the public without registration (“Rule
144”),
the
Company agrees to
(i)
make
and keep public information available, as those terms are understood and defined
in Rule 144;
(ii)
use
its reasonable best efforts to file with the Commission in a timely manner
all
reports and other documents required of the Company under the Securities Act
and
the Exchange Act; and
(iii)
furnish to any Holder so long as any Holder owns Shares or Warrants promptly
upon request, (i) a written statement by the Company that it has complied with
the reporting requirements of the Securities Act and the Exchange Act, (ii)
a
copy of the most recent annual or periodic report of the Company and such other
reports and documents so filed by the Company and (iii) such other information
as may be reasonably requested to permit the Holders to sell such securities
pursuant to Rule 144 without registration.
9. Assignment
of the Registration Rights.
The
rights to have the Company register Registrable Securities pursuant to this
Agreement shall be automatically assigned by a Purchaser to any transferee
of
the Shares or Warrants held by such Purchaser if: (a) such Purchaser 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; (b) the Company is, at the time of such transfer within five
business days after such transfer or assignment, furnished with written notice
of the name and address of such transferee or assignee; and (c) at or before
the
time the Company receives the written notice contemplated by clause (b) of
this
sentence, the transferee or assignee agrees in writing with the Company to
be
bound by all of the provisions contained herein.
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10. Amendment
of Registration Rights.
Any
provision 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 Holders.
Any amendment or waiver effected in accordance with this Section 10 shall be
binding upon the Company and the Holders.
11. Miscellaneous.
(a) A
person
or entity is deemed to be a holder of Registrable Securities whenever such
person or entity owns of record such Registrable Securities or Warrants
exercisable into such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more persons or
entities with respect to the same Registrable Securities, the Company shall
act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities or Warrants.
(b) Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be effective upon personal delivery,
via
facsimile (upon receipt of confirmation of error-free transmission) or two
business days following deposit of such notice with an internationally
recognized courier service, with postage prepaid and addressed to each of the
other parties thereunto entitled at the address set forth below in this Section
11(b), or at such other addresses as a party may designate by ten (10) days
advance written notice to each of the other parties hereto.
All
notices shall be addressed as follows:
If
to the
Purchasers, addressed to:
c/o
Deerfield Management Company L.P.
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxx
Facsimile
No.: (000) 000-0000
With
a
copy to:
Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxx, Esq.
Telecopier
No: (000) 000-0000
If
to any
Holder, to such address as such Holder notifies the Company in writing.
In
each
case, with a copy to:
Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxx, Esq.
Telecopier
No: (000) 000-0000
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If
to the
Company, addressed to:
DrugMax,
Inc.
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
General Counsel
Facsimile
No.: (000) 000-0000
With
a
copy to:
Xxxxxxxx
& Xxxx LLP
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxx Xx. Esq.
Telecopier
No: (000) 000-0000
(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) This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York, without giving effect to conflicts of laws issues. Each
of the parties agrees to the jurisdiction of the federal courts whose districts
encompass any part of the City of New York or the state courts of the State
of
New York sitting in the City of New York in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by
law,
any objection, including any objection based on forum non
conveniens,
to the
bringing of any such proceeding in such jurisdictions. This Agreement may be
signed in two or more counterparts, each of which shall be deemed an original.
The headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement. If any provision
of this Agreement shall be invalid or unenforceable in any jurisdiction, such
validity or unenforceability shall not affect the validity or enforceability
of
the remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction. Subject to the provisions of Section 10
hereof, this Agreement may be amended only by an instrument in writing signed
by
the party to be charged with enforcement.
(e) This
Agreement, together with the other Transaction Documents, constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.
This Agreement supersedes all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof.
(f) Subject
to the requirements of Section 9 hereof, this Agreement shall inure for the
benefit of and be binding upon the successors and assigns of each of the parties
hereto.
(g) All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require.
9
IN
WITNESS WHEREOF, the parties have caused this Investor Rights Agreement to
be
executed as of the date first written above.
| DRUGMAX, INC. | ||
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| By: | /s/ | |
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Name: |
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| Title | ||
| DEERFIELD SPECIAL SITUATIONS FUND, L.P. | ||
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| By: | Deerfield Capital, L.P., its general partner | |
| By: | X.X. Xxxxx Capital, LLC, its general partner | |
| By: | /s/ | |
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Name: |
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| Title | ||
| DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL, LIMITED | ||
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| By: | /s/ | |
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Name: |
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| Title: | ||
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