Exhibit 10.16
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of May 21,
2003(this "Agreement"), is made by and between HEALTH SCIENCES GROUP, INC., a
Colorado corporation, with headquarters located at 0000 Xxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"), and CASTLERIGG MASTER
INVESTMENTS, LTD., a corporation organized under the laws of the British Virgin
Islands, with headquarters at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Investor").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of the
Securities Purchase Agreement, dated as of the date of acceptance as set forth
on the Securities Purchase Agreement, between the Investor and the Company (the
"Securities Purchase Agreement") capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Securities Purchase Agreement),
the Company has agreed to issue and sell to the Investor a Debenture; and
WHEREAS, the Debenture is convertible into shares of Common
Stock (the "Conversion Shares"); which term, for purposes of this Agreement,
shall include shares of Common Stock of the Company issuable in lieu of accrued
interest through the Maturity Date of the Debenture, as that term is defined in
and as contemplated by the Debenture) upon the terms and subject to the
conditions contained in the Debenture; and
WHEREAS, the Company has agreed to issue the Warrant to the
Investor in connection with the issuance of the Debenture, and the Warrant may
be exercised for the purchase of shares of Common Stock (the "Warrant Shares")
upon the terms and conditions of the Warrant; and
WHEREAS, to induce the Investor to execute and deliver the
Securities Purchase Agreement, the Company has 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
"Securities Act"), with respect to the Registrable Securities;
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 the
Investor hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Closing Date" means the date of the closing of the
purchase and sale of the Debentures and Warrants upon the release of the
Purchase Price from escrow, as provided in the Securities Purchase Agreement.
(b) "Effective Date" means the date the SEC declares a
Registration Statement covering Registrable Securities and otherwise meeting the
conditions contemplated hereby to be effective.
(c) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements 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 "SEC").
(d) "Registrable Securities" means the Conversion Shares and
the Warrant Shares.
(e) "Registration Statement" means a registration statement of
the Company under the Securities Act covering Registrable Securities on Form
SB-2, if the Company is then eligible to file using such form, and if not
eligible, on such other appropriate form.
2. Registration.
(a) Mandatory Registration. The Company shall prepare and file
with the SEC, as soon as possible after the Closing Date but no later than
thirty (30) days after the effective date of the registration of securities
pursuant to that certain Registration Rights Agreement between the Company and
Brivis Investments, Ltd. And Stranco Investments, Ltd. dated February 24, 2003
(the "Required Filing Date"), a Registration Statement registering for resale by
the Investor a sufficient number of shares of Common Stock for the Investors to
sell the Registrable Securities, but in no event less than the number of shares
equal to the number of shares into which the Debentures and all interest thereon
through the Maturity Date would be convertible at the time of filing of such
Registration Statement and (y) the number of Warrant Shares which would be
issuable on exercise of the Warrant. The Registration Statement shall also cover
the shares of Common Stock issuable upon exercise of the Warrants being issued
toVestcom LTD. The Registration Statement shall state that, in accordance with
Rule 416 and 457 under the Securities Act, it also covers such indeterminate
number of additional shares of Common Stock as may become issuable upon
conversion of the Debentures and the exercise of the Warrants to prevent
dilution resulting from stock splits or stock dividends. The Company will use
its reasonable best efforts to cause such Registration Statement to be declared
effective. In the event that the Registration Statement is is not effective (the
"Required Effective Date") upon the earlier of (Y) five (5) days after oral or
written notice by the SEC that it may be declared effective or (Z) ninety (90)
days after the Required Filing Date (unless such failure to become effective is
a result of the actions of the Lender), the Company will be deemed to be in
breach of this Agreement.
(b) Payments by the Company.
(i) If the Registration Statement covering the Registrable
Securities is not filed in proper form with the SEC by the Required Filing Date,
the Company will make payment to the Initial Investor in such amounts and at
such times as shall be determined pursuant to this Section 2(b).
(ii) If the Registration Statement covering the Registrable
Securities is not effective by the relevant Required Effective Date or if the
Investor is restricted from making sales of Registrable Securities covered by a
previously effective Registration Statement at any time by virtue of a
suspension or stop order with respect to such Registration Statement (the date
such restriction commences, a "Restricted Sale Date"), then the Company will
make payments to the Investor in such amounts and at such times as shall be
determined pursuant to this Section 2(b); notwithstanding the following, the
Company may suspend the Investor from making sales of Registrable Securities for
up to three such suspension periods during any consecutive 12 month period, each
of which suspension period shall not either (i) be for more than three (3)
business days or (ii) begin less than ten (10) business days after the last day
of the preceding suspension.
(iii) The amount (the "Periodic Amount") to be paid by the
Company to the Investor shall be determined as of each Computation Date (as
defined below) and such Periodic Amount shall be equal to 2% of the principal
amount of Debenture outstanding for the period from the date following each of
the relevant Required Filing Date or the Required Effective Date, as the case
may be, to the first relevant Computation Date, and thereafter to each
subsequent Computation Date (prorated on a daily basis if such period is less
than thirty (30) days). The parties acknowledge that the failure to comply on a
timely basis with the provisions related to both the Required Filing Date and
the Required Effective Date would result in a payment of four percent of the
then outstanding principal amount of the Debenture. Anything in the preceding
provisions of this paragraph (iii) to the contrary notwithstanding, after the
Effective Date the Purchase Price shall be deemed to refer to the sum of (X) the
principal amount of all Debentures previously purchased but not yet converted
and (Y) the Held Shares Value (as defined below). The "Held Shares Value" means,
for shares acquired by the Investor upon a conversion within the thirty (30)
days preceding the Restricted Sale Date, but not yet sold by the Investor the
principal amount of the Debentures converted into such shares of Common Stock;
provided, however, that if the Investor effected more than one conversion during
such thirty (30) day period and sold less than all of such shares, the sold
shares shall be deemed to be derived first from the conversions in the sequence
of such conversions (that is, for example, until the number of shares from the
first of such conversions have been sold, all shares shall be deemed to be from
the first conversion; thereafter, from the second conversion until all such
shares are sold).
(iv) Each Periodic Amount will be payable by the Company, and
at the option of the Investor, in cash or freely tradable shares of Common Stock
(1) on the day after the Required Filing Date or the Required Effective Date, as
the case may be, and (2) each thirtieth day thereafter.
(v) The parties acknowledge that the damages which may be
incurred by the Investor if the Registration Statement is not filed by the
Required Filing Date or the Registration Statement has not been declared
effective by a Required Effective Date, including if the right to sell
Registrable Securities under a previously effective Registration Statement is
suspended or the shares of the Company's stock are not listed on the Principal
Trading Market, may be difficult to ascertain. The parties agree that the
Periodic Amounts represent a reasonable estimate on the part of the parties, as
of the date of this Agreement, of the amount of such damages.
(vi) Notwithstanding the foregoing, the amounts payable by the
Company pursuant to this provision shall not be payable to the extent any delay
in the effectiveness of the Registration Statement or such Registration
Statement is suspended or subject to a stop order occurs because of an act of,
or a failure to act or to act timely by the Investor or its counsel.
(vii) "Computation Date" means (A) the date which is the
earlier of (1) thirty (30) days after the Required Filing Date or Required
Effective Date, as the case may be, or (2) the date after the Required Filing
Date on which the Registration Statement is filed (with respect to payments due
as contemplated by Section 2(b)(i) hereof) or the date after the Required
Effective Date on which the Registration Statement is declared effective (with
respect to payments due as contemplated by Section 2(b)(ii) hereof), as the case
may be, and (B) each date which is the earlier of (1) thirty (30) days after the
previous Computation Date or (2) the date after the previous Computation Date on
which the Registration Statement is filed (with respect to payments due as
contemplated by Section 2(b)(i) hereof) or is declared effective (with respect
to payments due as contemplated by Section 2(b)(ii) hereof), as the case may be.
3. Obligations of the Company. In connection with the
registration of the Registrable Securities, the Company shall do each of the
following:
(a) Prepare promptly, and file with the SEC by the Required
Filing Date a Registration Statement with respect to not less than the number of
Registrable Securities provided in Section 2(a) above, and thereafter use its
reasonable best efforts to cause such Registration Statement relating to
Registrable Securities to become effective by the Required Effective Date and
keep the Registration Statement effective at all times during the period (the
"Registration Period") continuing until the earlier of (i) the date when the
Investors may sell all Registrable Securities under Rule 144 without volume or
other restrictions or limits or (ii) the date the Investors no longer own any of
the Registrable Securities, which 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
light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times during the
Registration Period, and, during the Registration Period, comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statement
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 Statement;
(c) Permit a single firm of counsel designated by the Investor
to review the Registration Statement and all amendments and supplements thereto
a reasonable period of time (but not less than three (3) business days) prior to
their filing with the SEC, and not file any document in a form to which such
counsel reasonably objects.
(d) Notify the Investor and the Investor's counsel (initially
Xxxxxx X. Xxxxxxxx, Esq.) and any managing underwriters immediately (and, in the
case of (i)(A) below, not less than three (3) business days prior to such
filing) and (if requested by any such person) confirm such notice in writing no
later than one (1) business day following the day (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment to the Registration
Statement is proposed to be filed; (B) whenever the SEC notifies the Company
whether there will be a "review" of such Registration Statement; (C) whenever
the Company receives (or a representative of the Company receives on its behalf)
any oral or written comments from the SEC in respect of a Registration Statement
(copies or, in the case of oral comments, summaries of such comments shall be
promptly furnished by the Company to the Investors); and (D) with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the SEC or any other Federal or state
governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the SEC of any stop order suspending the effectiveness of the Registration
Statement covering any or all of the Registrable Securities or the initiation of
any proceedings for that purpose; (iv) if at any time any of the representations
or warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated hereby ceases to be true and correct in all
material respects; (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose; and (vi) of the
occurrence of any event that to the best knowledge of the Company makes any
statement made in the Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to the Registration Statement,
Prospectus or other documents so that, in the case of the Registration Statement
or the Prospectus, as the case may be, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In addition, the
Company shall furnish the Investor's Counsel with copies of all intended written
responses to the comments contemplated in clause (C) of this Section 3(d) not
later than one (1) business day in advance of the filing of such responses with
the SEC so that the Investors shall have the opportunity to comment thereon;
(e) Furnish the Investor and to Investor's Counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company, one (1) copy of the Registration Statement,
each preliminary prospectus and prospectus, and each amendment or supplement
thereto, and (ii) such number of copies of a prospectus, and all amendments and
supplements thereto and such other documents, as such Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Investor;
(f) As promptly as practicable after becoming aware thereof,
notify each Investor of the happening of any event of which the Company has
knowledge, as a result of which the prospectus included in the 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, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a supplement
or amendment to the Registration Statement or other appropriate filing with the
SEC to correct such untrue statement or omission, and deliver a number of copies
of such supplement or amendment to the Investor as the Investor may reasonably
request;
(g) As promptly as practicable after becoming aware thereof,
notify the Investor who holds the Registrable Securities being sold (or, in the
event of an underwritten offering, the managing underwriters) of the issuance by
the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop
order or other suspension of the effectiveness of the Registration Statement at
the earliest possible time;
(h) Use its reasonable efforts to secure and maintain the
designation of all the Registrable Securities covered by the Registration
Statement on the Principal Trading Market within the meaning of Rule 11Aa2-1 of
the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the quotation of the Registrable Securities on the Principal Trading
Market.
(i) Cooperate with the Investor to facilitate the timely
preparation and delivery of certificates for the Registrable Securities to be
offered pursuant to the Registration Statement and enable such certificates for
the Registrable Securities to be in such denominations or amounts as the case
may be, as the Investor may reasonably request, and, within five (5) business
days after a Registration Statement which includes Registrable Securities is
ordered effective by the SEC, 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 Investors whose Registrable
Securities are included in such Registration Statement) an appropriate
instruction and opinion of such counsel;
(j) For a period of 90 days from the Effective Date, not file a Registration
Statement for more than 100,000 shares of Common Stock;
(k) Take all other reasonable actions necessary to expedite and facilitate
disposition by the Investor of the Registrable Securities pursuant to the
Registration Statement.
4. Obligations of the Investor. In connection with the
registration of the Registrable Securities, the Investors shall have the
following obligations:
(a) The Investor, by the 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 the
Registration Statement hereunder, unless the Investor has notified the Company
in writing of the Investor's election to exclude all of the Investor's
Registrable Securities from the Registration Statement; and
(b) The Investor agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 3(f)
or 3(g), above, the Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until the Investor's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(f) or 3(g) and, if
so directed by the Company, the Investor shall deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in the Investor's possession, of the prospectus covering
such Registrable Securities current at the time of receipt of such notice.
5. Expenses of Registration.
(a) All expenses (other than (i) underwriting discounts and commissions of the
Investor and (ii) expenses of the Investor's counsel incurred in connection with
registrations, filings or qualifications pursuant to Section 3), but including,
without limitation, all registration, listing, and qualifications fees, printers
and accounting fees, the fees and disbursements of counsel for the Company shall
be borne by the Company.
(b) The Company has not, as of the date hereof, nor shall the
Company on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Investor in this Agreement or the Securities Purchase Agreement, except as
disclosed therein.
6. Indemnification. After Registrable Securities are included
in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless, the Investor, the directors, if any, of such Investor, the
officers, if any, of such Investor, and the Lender Control Person (each, an
"Indemnified Party"), 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 in respect
thereof) arise out of or are based upon: (i) any untrue statement or 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 to make the
statements therein not misleading, (ii) any untrue statement or untrue statement
of a material fact 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 the light of the
circumstances under which the statements therein 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 the
foregoing clauses (i) through (iii) being collectively referred to as
"Violations"). The Company shall reimburse the Investor 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) shall not (i) apply to 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 any Indemnified Party
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 such Claim is based on a failure of the Investor to deliver or
cause to be delivered the prospectus made available by the Company; 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. The Investor will indemnify the Company, its officers,
directors and agents (including legal counsel) (each an "Indemnified Party")
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 Investor, expressly for use in connection with
the preparation of the Registration Statement, subject to such limitations and
conditions set forth in this Section 6. The Investor shall reimburse the Company
for any reasonable legal fees or other reasonable expenses incurred by it in
connection with investigating or defending any such Claim. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Party, and shall survive the offering and transfer of
the Registrable Securities by the Investor.
(b) Promptly after receipt by an Indemnified Party under this Section 6
of notice of the commencement of any action (including any governmental action),
such 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 similarly noticed,
to assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Indemnified Party, as the case may be; PROVIDED,
HOWEVER, that an Indemnified Party 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 indemnifying
party, the representation by such counsel of the Indemnified Party and the
indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Party and any other party represented by such
counsel in such proceeding. 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 Party under this Section 6, except to the extent that the
indemnifying party is 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.
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 (a) 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; (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) except where the seller has committed fraud (other
than a fraud by reason of the information included or omitted from the
Registration Statement as to which the Company has not given notice as
contemplated under Section 3 hereof) or intentional misconduct, 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.
8. Reports under Securities Act and Exchange Act. With a view
to making available to Investor the benefits of Rule 144 promulgated under the
Securities Act or any other similar rule or regulation of the SEC that may at
any time permit Investor 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 Securities Act and the Exchange Act;
(c) furnish to the Investor so long as the Investor owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) if not available on the SEC's XXXXX
system, a copy of the most recent annual or quarterly 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 Investor 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 the Investors to any transferee of the Registrable
Securities (or all or any portion of any unconverted Debentures) only if 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.
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 Investor.
Any amendment or waiver effected in accordance with this Section 10 shall be
binding upon the Investor and the Company.
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. 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 instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall
be given in the manner contemplated by the Securities Purchase Agreement, (i) if
to the Company or to the Investor, to their respective address and the address
of their counsel as contemplated by the Securities Purchase Agreement, and (ii)
if to any other Investor, at such address as such Investor shall have provided
in writing to the Company, or at such other address as each such party furnishes
by notice given in accordance with this Section 11(b).
(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 Colorado for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the jurisdiction
of the federal courts in the City of New York, New York or the state courts of
the State of New York sitting in the City of New York, New York County, 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 coveniens, to the bringing of any such proceeding in such
jurisdictions. To the extent determined by such court, the Company shall
reimburse the Investor for any reasonable legal fees and disbursements incurred
by the Investor in enforcement of or protection of any of its rights under this
Agreement
(e) 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 or the
validity or enforceability of this Agreement in any other jurisdiction.
(f) Subject to the requirements of Section 9 hereof, this
Agreement shall inure to 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.
(h) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
(i) This Agreement may be executed in one or more
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 telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
(j) This Agreement constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof. This Agreement may be
amended only by an instrument in writing signed by the party to be charged with
enforcement thereof.
(k) The Company acknowledges that any failure by the Company to
perform its obligations under Section 3(a) hereof, or any delay in such
performance could result in loss to the Investors, and the Company agrees that,
in addition to any other liability the Company may have by reason of such
failure or delay, the Company shall be liable for all direct damages caused by
any such failure or delay, unless the same is the result of force majeure.
Neither party shall be liable for consequential damages.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
COMPANY:
HEALTH SCIENCES GROUP, INC.
By: ___________________________
Title:__________________________
INVESTOR:
CASTLERIGG MASTER INVESTMENTS, INC.
By: ____________________________
Name: __________________________
Title:
-------------------------
