REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
December 8, 1998, is by and among XXXXXX, INC., a Colorado corporation (the
"COMPANY"), Zuellig Group N.A., Inc., a Delaware corporation ("ZGNA") and
Zuellig Botanicals, Inc., a Delaware corporation ("ZBI").
R E C I T A L S :
WHEREAS, on the date hereof, ZGNA has acquired an option (the
"OPTION") to acquire 2,000,000 share of Common Stock (as herein defined); and
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger (the
"MERGER AGREEMENT"), dated as of the date hereof, ZGNA and ZBI will acquire 49%
of the issued and outstanding shares of Common Stock, subject to the terms and
conditions of the Merger Agreement; and
WHEREAS, as a condition and inducement to ZGNA's pursuit of the
transactions contemplated by the Merger Agreement and the transactions
contemplated thereby, and in consideration therefor, the Company has agreed to
grant ZGNA certain registration rights, all in accordance with and subject to
the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants and agreements herein contained,
ZGNA and the Company hereby agree as follows:
SECTION 1. DEFINITIONS
The terms defined in this Section 1, whenever used herein, shall have
the following meanings for all purposes of this Agreement.
"AFFILIATE" means any Person or entity, directly or indirectly,
controlling, controlled by or under common control with such Person or entity.
"AGREEMENT" shall have the meaning set forth in the preamble hereto.
"BOARD" shall mean the board of directors of the Company.
"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or other
day on which banks in the State of New York are not required or authorized to
close.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMMON STOCK" shall mean the common stock, par value $0.001 per
share, of the Company.
"COMPANY" shall have the meaning set forth in the preamble hereto.
"DEMANDING HOLDERS" shall have the meaning set forth in Section
2.2(b).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, an
amended.
"FINAL PROSPECTUS" shall have the meaning set forth in Section 2.5(f).
"HOLDER" shall mean any holder of Registrable Securities.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section
2.5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
2.5(c).
"INITIATING HOLDER" shall mean any Holder or Holders who in the
aggregate are Holders of more than 50% of the then outstanding Registrable
Securities.
"MERGER AGREEMENT" shall have the meaning set forth in the Recitals
hereto.
"OPTION" shall have the meaning set forth in the Recitals hereto.
"OTHER STOCKHOLDERS" shall have the meaning set forth in Section
2.1(b).
"PERSON" shall mean an individual, partnership, joint-stock company,
corporation, limited liability company, trust or unincorporated organization, or
a government, agency, regulatory authority or political subdivision thereof.
"REGISTER," "REGISTERED" and "REGISTRATION" shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement.
"REGISTRABLE SECURITIES" shall mean (i) the shares of Common Stock
issuable upon exercise of the Option, (ii) the
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shares of Common Stock issuable to ZGNA and ZBI pursuant to the Merger
Agreement, (iii) any additional shares of Common Stock, if any, acquired
by ZGNA or ZBI from the Company from time to time and (iv) any capital
stock of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, the shares of
Common Stock, if any, referred to in clause (i), (ii) or (iii). As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to
the sale of such securities has been declared effective under the
Securities Act and such securities shall have been sold in accordance
with such registration statement, or (ii) such securities shall have
been sold pursuant to Rule 144 (or any successor provision) under the
Securities Act.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in compliance with Sections 2.1 and 2.2 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company, which shall
be paid in any event by the Company).
"SECURITIES ACT" shall mean the Securities Act of 1933, an amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders.
"ZBI" shall mean Zuellig Botanicals, Inc., a Delaware corporation and
a wholly owned subsidiary of ZGNA.
"ZGNA" shall have the meaning set forth in the preamble hereto.
SECTION 2. REGISTRATION RIGHTS
2.1. REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. If the Company shall receive from an
Initiating Holder a written request that the Company effect any registration
with respect to all or a part of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders of Registrable Securities; and
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(ii) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the execution of an
undertaking to file post- effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within ten (10) Business Days after written notice from the
Company is given under Section 2.1(a)(i) above; PROVIDED that the Company shall
not be obligated to effect, or take any action to effect, any such registration
pursuant to this Section 2.1:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act or applicable rules or regulations thereunder;
(B) After the Company has effected two (2) such
registrations pursuant to this Section 2.1 and such registrations have been
declared or ordered effective and the sales of such Registrable Securities shall
have closed; or
(C) If the Registrable Securities requested by all Holders
to be registered pursuant to such request have an anticipated aggregate public
offering price (before any underwriting discounts and commissions) of less than
$10,000,000; or
(D) If in the good faith judgment of the Board, such
registration would be seriously detrimental to the Company, the Company shall
have the right to delay or suspend the effectiveness of any registration for up
to 90 days but not more than once in any twelve month period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 2.1(b) below,
include other securities of the Company which are held by Persons who, by virtue
of agreements with the Company, are entitled to include their securities in any
such registration.
The registration rights set forth in this Section 2 shall be
assignable, in whole or in part, to any transferee of Registrable Securities
(who shall be bound by all obligations of this Section 2).
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(b) UNDERWRITING. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 2.1.
If holders of securities of the Company other than Registrable
Securities who are entitled, by contract with the Company or otherwise, to have
securities included in such a registration (the "OTHER STOCKHOLDERS") request
such inclusion, the Holders shall offer to include the securities of such Other
Stockholders in the underwriting and may condition such offer on their
acceptance of the further applicable provisions of this Section 2. The Holders
whose shares are to be included in such Registration and the Company shall
(together with all Other Stockholders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected for
such underwriting by the Initiating Holders and reasonably acceptable to the
Company. Notwithstanding any other provision of this Section 2.1, if the
representative advises the Holders in writing that marketing factors require a
limitation on the number of shares to be underwritten, the securities of the
Company held by Other Stockholders shall be excluded from such registration to
the extent so required by such limitation. If, after the exclusion of such
shares, further reductions are still required, the number of shares included in
the registration by each Holder shall be reduced on a pro rata basis (based on
the number of shares held by such Holder), by such minimum number of shares as
is necessary to comply with such request. No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any of the
Holders or any Other Stockholder who has requested inclusion in such
registration as provided above disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the Company,
the underwriter and the Initiating Holders. The securities so withdrawn shall
also be withdrawn from registration. If the underwriter has not limited the
number of Registrable Securities to be underwritten, the Company may include its
securities for its own account in such registration if the representative so
agrees and if the number of Rgistrable Securities which would otherwise have
been included in such registration and underwriting will not thereby be limited.
2.2. COMPANY REGISTRATION.
(a) INCLUSION IN REGISTRATION. If the Company shall determine to
register any of its Common Stock either for its own account or for the account
of a security holder or holders exercising their respective demand registration
rights, other than a registration relating solely to employee benefit plans, or
registration relating solely to a SEC Rule 145 transaction, or a registration on
any registration form which does not permit
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secondary sales or does not include substantially the same information
as would be required to be included in a registration statement covering
the sale of Registrable Securities, the Company will:
(i) promptly give to each of the Holders a written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
by the Holders within fifteen (15) days after receipt of the written notice from
the Company described in clause (i) above, except as set forth in Section 2.2(b)
below. Such written request may specify all or a part of the Holders'
Registrable Securities.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2.2(a)(i). In such event, the right of each of the
Holders to registration pursuant to this Section 2.2 shall be conditioned upon
such Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration shall
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2.2, if the representative
determines that marketing factors require a limitation on the number of shares
to be underwritten, the representative may (subject to the allocation priority
set forth below) limit the number of Registrable Securities to be included in
the registration and underwriting. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated in the following manner: the securities of the Company held by Other
Stockholders of the Company (other than Registrable Securities and other than
securities held by holders who by contractual right demanded such registration
("DEMANDING HOLDERS")) shall be excluded from such registration and underwriting
to the extent required by such limitation, and, if a limitation on the number of
shares is still required, the number of shares that may be included in the
registration and underwriting by each of the Holders and Demanding Holders shall
be reduced, on a pro rata basis (based on the number of shares held by such
Holder), by such minimum number of shares as is necessary to comply with such
limitation. If any of the Holders or any Other Stockholder disapproves of the
terms
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of any such underwriting, such person may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
2.3. EXPENSES OF REGISTRATION.
Except as provided in the next sentence, all Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 2 shall be borne by the Company, and all Selling
Expenses shall be borne by the holders of the securities so registered pro rata
on the basis of the number of their shares so registered. If a registration has
been requested pursuant to Section 2.1 and a registration statement is declared
effective by the Securities and Exchange Commission, but the sales of the
Registrable Securities does not close, the Holders are not considered to have
used a requested registration under Section 2.1(a)(ii)(B), but after the second
requested registration which results in the filing of a registration statement
which is declared effective (whether or not sales occur), the holders of the
Registrable Securities in any subsequent requested registration will pay all
Registration Expenses and Selling Expenses pro rata on the basis of the number
of shares so registered.
2.4. REGISTRATION PROCEDURES.
In the case of each registration effected by the Company pursuant to
this Section 2, the Company will keep the Holders, as applicable, advised in
writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will:
(i) keep such registration effective for a period of one hundred
twenty (120) days or until the Holders, as applicable, have completed the
distribution described in the registration statement relating thereto, whichever
first occurs; PROVIDED, HOWEVER, that such 120-day period shall be extended for
a period of time equal to the period during which the Holders, as applicable,
refrain from selling any securities included in such registration in accordance
with provisions in Section 2.8 hereof;
(ii) furnish such number of prospectuses and other documents incident
thereto as each of the Holders, as applicable, from time to time may reasonably
request;
(iii) notify each Holder of Registrable Securities covered by such
registration at any time when a prospectus relating thereto is required to be
delivered under the Securities Act 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
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necessary to make the statements therein not misleading in the light of
the circumstances then existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (1) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
participating in such registration, addressed to the underwriters, if any, and
to the Holders participating in such registration and (2) a letter, dated as of
such date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders participating in such
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders participating in such
registration.
2.5. INDEMNIFICATION.
(a) The Company will indemnify each of the Holders, as applicable,
each of its officers, directors and partners, and each person controlling each
of the Holders, with respect to each registration which has been effected
pursuant to this Section 2, and each underwriter, if any, and each person who
controls any underwriter, against all claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse each of
the Holders, each of its officers, directors and partners, and each person
controlling each of the Holders, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, PROVIDED that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon
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written information furnished to the Company by the Holders or
underwriter and stated to be specifically for use therein.
(b) Each of the Holders will, if Registrable Securities held by it
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter, each Other Stockholder and other Holders and each of their
officers, directors, and partners, and each person controlling such other
Stockholder against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made by such Holder,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements by such Holder therein
not misleading, and will reimburse the Company and such Other Stockholders and
other Holders, directors, officers, partners, persons, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder for use therein; PROVIDED, HOWEVER, that the
obligations of each of the Holders hereunder shall be limited to an amount equal
to the net proceeds to such Holder of securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 2.5
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; PROVIDED that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of counsel shall be at the expense of the Indemnifying Party),
and PROVIDED, FURTHER, that the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 2 unless the Indemnifying Party is materially prejudiced
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thereby. No Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, which shall not be
unreasonably withheld, 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 Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 2.5 is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue) statement of a material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering contemplated by
this Agreement are in conflict with the foregoing provisions, the provisions in
such underwriting agreement shall be controlling.
(f) The foregoing indemnity agreement of the Company and the Holders
is subject to the condition that, insofar as they relate to any loss, claim,
liability or damage from a statement or omission made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in question becomes effective
or the amended prospectus filed with the Commission pursuant to Commission Rule
424(b) (the "FINAL PROSPECTUS"), such indemnity agreement shall not inure to the
benefit of an underwriter if a copy of the Final Prospectus was furnished to
such underwriter and was not furnished by such underwriter to the person
asserting
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the loss, liability, claim or damage at or prior to the time such action
is required by the Securities Act.
2.6. INFORMATION BY THE HOLDERS.
Each of the Holders holding securities included in any registration
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Section 2.
2.7. RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, so long as the Company is required to file
reports pursuant to the Exchange Act, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144;
(ii) use its 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 at any time after it has become subject to
such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed as the Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holder to sell any such securities without registration.
2.8. "MARKET STAND-OFF" AGREEMENT.
Each of the Holders agrees, if requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, not to sell,
short sell, or purchase or sell derivative securities in respect of Common
Stock, or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Holder during the 90-day period
following the effective date of a registration statement of the Company filed
under the Securities Act, PROVIDED that all executive officers and directors of
the Company enter into similar agreements other than in respect of securities
included in such registration.
If requested by the underwriters, the Holders shall execute a separate
agreement to the foregoing effect. The
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Company may impose stop-transfer instructions with respect to the shares
(or securities) subject to the foregoing restriction until the end of
said 90-day period. The provisions of this Section 2.8 shall be binding
upon any transferee who acquires Registrable Securities, whether or not
such transferee is entitled to the registration rights provided
hereunder.
2.9. TERMINATION.
The registration rights set forth in this Section 2 shall not be
available to any Holder if, in the opinion of counsel to the Company, all of the
Registrable Securities desired to be sold by such Holder could be sold in any
90-day period pursuant to Rule 144 under the Securities Act (without giving
effect to the provisions of Rule 144(k)).
2.10. MERGER AGREEMENT.
The obligation of the Company to register Registrable Securities is
subject to Section 6.9 of the Merger Agreement in respect of limitation on sales
of Registrable Securities.
2.11. LEGEND.
The Company may place the following legend on certificates of
Registrable Securities: "The shares represented by this certificate are subject
to a Registration Rights Agreement, dated as of December 8, 1998, as amended
from time to time, a copy of which may be obtained at the office of the
Company."
SECTION 3. MISCELLANEOUS
3.1. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF COLORADO APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
3.2. PARAGRAPH AND SECTION HEADINGS.
The headings of the sections and subsections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
thereof.
3.3. NOTICES.
(a) All communications under this Agreement shall be in writing and
shall be delivered by hand, by facsimile or mailed by overnight courier or by
registered mail or certified mail, postage prepaid:
(1) if to ZGNA or ZBI, at 0000 Xx Xxxxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxxxxx 00000-0000 (facsimile: (000) 000-0000), marked
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for attention of President, or at such other address as ZGNA or ZBI may
have furnished the Company in writing (with a copy to Xxxxxxx Xxxx &
Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Xxxxxx X. Xxxxxx, Esq. (facsimile: 212-728-8111), or at such other
address it may have furnished the Company in writing), or
(2) if to the Company, at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx
00000 (facsimile: (000) 000-0000), marked for the attention of Xxxx Xxxxx, or at
such other address as the Company may have furnished Investor in writing (with a
copy to Xxxxxxxx, Xxxxx & Xxxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, Esq. (facsimile: 303-449-5426) or
at such other address as it may have furnished in writing to the Investor and
the Escrow Agent), or
(b) Any notice so addressed shall be deemed to be given: if
delivered by hand or by facsimile, on the date of such delivery; if delivered by
courier, on the first Business Day following the date of the delivery to the
courier; and if mailed by registered or certified mail, on the third Business
Day after the date of such mailing.
3.4. EXPENSES AND TAXES.
Whether or not the Closing shall have occurred, each party shall pay
its own fees and expenses incurred in connection with the transactions
contemplated hereby.
3.5. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties.
3.6. ENTIRE AGREEMENT; AMENDMENT AND WAIVER.
This Agreement and the agreements attached as Exhibits hereto
constitute the entire understandings of the parties hereto and supersede all
prior agreements or understandings with respect to the subject matter hereof
among such parties. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and holders of the majority of the Registrable Securities. No
course of dealing between the Company and any holder of the Registrable
Securities nor any delay in exercising any rights hereunder shall operate as a
waiver of any rights of either party hereto.
3.7. SEVERABILITY.
In the event that any part or parts of this Agreement shall be held
illegal or unenforceable by any court or administrative body of competent
jurisdiction, such determination
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shall not effect the remaining provisions of this Agreement which shall
remain in full force and effect.
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3.8. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same agreement.
XXXXXX, INC.
By: /s/ Xxxx X. Xxxxx
----------------------
Name: Xxxx X. Xxxxx
Title: CEO
ZUELLIG GROUP N.A., INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxx
Title: President
ZUELLIG BOTANICALS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Secretary & Treasurer
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