EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
this ____ day of January, 2000, by and between American Biogenetic Sciences,
Inc., a Delaware corporation ("ABS"), and Xxxxxx Laboratories, an Illinois
corporation ("Abbott").
RECITALS
WHEREAS, ABS and Abbott are parties to an Exclusive License
Agreement (the "License Agreement") and a Stock Purchase Agreement (the
"Stock Purchase Agreement"), both of which are of even date herewith; and;
WHEREAS, the execution and delivery of this Agreement are a
condition to the Share Closing of the Stock Purchase Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS. All terms not otherwise defined in this
Agreement shall have the same meanings ascribed to them in the Stock Purchase
Agreement. For purposes of this Agreement:
1.1 EXCHANGE ACT. The term "Exchange Act" shall mean
the Securities Exchange Act of 1934, as amended.
1.2 REGISTER, REGISTERED, AND REGISTRATION. The
terms "register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document
in compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
1.3 REGISTRABLE SECURITIES. The term "Registrable
Securities" means such portion of the Shares that has not previously been
registered or sold to the public.
1.4 REGISTRATION STATEMENT. The term "Registration
Statement" means a registration statement filed with the SEC under the
Securities Act to register the resale of the Registrable Securities by Abbott.
1.5 RULE 144. The term "Rule 144" shall mean Rule
144 promulgated by the SEC (or its successor rule).
1.6 SEC. The term "SEC" shall mean the Securities
and Exchange Commission.
1.7 SECURITIES ACT. The term "Securities Act" means
the Securities Act of 1933, as amended.
1.8 SHARES. The term "Shares" means the shares of
Class A common stock of ABS, $.001 par value per share, issued to Abbott
pursuant to the Stock Purchase Agreement and any common stock of ABS issued
as a dividend or other distribution with respect to such common stock.
2. REGISTRATION. ABS covenants and agrees as follows:
2.1 REGISTRATION RIGHTS - GENERALLY. At any time
after the first anniversary of this Agreement, Abbott may request ABS to file
a Registration Statement registering the resale of the Shares. Within
forty-five (45) days following such request, ABS shall prepare and file a
Registration Statement on Form S-3 (or such other short form registration
statement as is then available) and any related qualification or compliance
with respect to all of the Shares so as to permit or facilitate the sale and
distribution of all of the Shares. ABS agrees to use reasonable commercial
efforts to cause the Registration Statement to be declared effective as soon
as practicable after filing, but in any event no later than three (3)
business days after any notification by the SEC of its decision not to review
the Registration Statement or its determination that it has completed its
review of the Registration Statement and will accept an acceleration request.
ABS agrees it will not include any securities of ABS other than the Shares
and will not permit any other person or entity to include any additional
securities in the Registration Statement to be filed pursuant to this SECTION
2.1.
2.2 PIGGYBACK REGISTRATION RIGHTS. If, at any time
after the first anniversary of this Agreement, ABS shall determine to
register any of its securities, either for its own account or the account of
a security holder or holders exercising their respective registration rights,
other than (i) a registration relating solely to employee benefit plans on
Form S-8 (or a similar successor form), or (ii) a registration on Form S-4
(or a similar successor form) relating solely to a transaction subject to
Rule 145 under the Securities Act, ABS will promptly give Abbott written
notice thereof, and subject to the terms of SECTION 2.3 below, use its
reasonable efforts to include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all Registrable Securities specified in a
written request to ABS made within fifteen (15) business days after the
receipt of such written notice by Abbott.
2.3 UNDERWRITING.
(a) If the registration of which ABS gives
notice pursuant to SECTION 2.2 is for a
registered offering involving an
underwriting, then Xxxxxx'x right to
registration shall be conditioned upon
Xxxxxx'x participation in the underwriting
and the inclusion of Xxxxxx'x Registrable
Securities in the underwriting to the extent
provided in this Agreement. Abbott (together
with ABS and the holders of other securities
of ABS distributing their securities through
that underwriting (such other holders being
termed the "Other Holders")) shall enter
into an underwriting agreement in customary
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form with the representative of the
underwriter or underwriters selected by ABS.
(b) Notwithstanding any other provision of this
SECTION 2, if the representative of the
underwriters advises ABS in writing that
marketing factors require a limitation on
the number of shares to be underwritten,
then ABS shall so inform Abbott and the
Other Holders. The number of shares of ABS
common stock being sold by ABS for its own
account shall not be reduced by operation of
this SECTION 2.3. The number of shares of
Registrable Securities held by Abbott and
the Other Holder(s) that may be included in
the underwriting (in addition to those being
sold by ABS for its own account) shall be
allocated among Abbott and the Other Holders
in proportion (as nearly as practicable) to
the amount of Registrable Securities owned
by each such holder.
(c) Any holder which does not agree to the terms
of the such underwriting shall be excluded
from that underwriting by written notice
from ABS or the underwriter. Any Registrable
Securities or other securities excluded or
withdrawn from that underwriting shall be
withdrawn from the registration.
2.4 REGISTRATION EXPENSES. ABS shall pay all
"registration expenses" (as defined below) in connection with any
registration, qualification or compliance under this Agreement. Abbott shall
pay all "selling expenses" (as defined below). The term "registration
expenses" shall mean all expenses, except for selling expenses, incurred by
ABS in complying with the registration provisions of this Agreement,
including, without limitation, all registration, qualification and filing
fees, printing expenses, escrow fees, fees and disbursements of counsel for
ABS, accounting fees, blue sky fees and expenses, and the expense of any
attest service incident to or required by any such registration. The term
"selling expenses" shall mean all selling commissions, underwriting fees and
stock transfer taxes applicable to the Shares and all fees and disbursements
of counsel for Abbott.
2.5 OBLIGATIONS OF ABS. In the case of a
registration effected by ABS pursuant to this SECTION 2, ABS will use
reasonable efforts to:
(a) keep such registration effective until the
earliest of:
(i) such date as all of the Shares
have been sold, or
(ii) if ABS is not then eligible to
effect such registration on
Form S-3 (or a similar successor
form), one hundred and twenty
(120) days after the effective date
of the Registration Statement, or
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(iii) the termination of the registration
rights pursuant to SECTION 2.9
hereof.
(b) prepare and file with the SEC such
amendments and supplements to the
Registration Statement and the prospectus
used in connection with the Registration
Statement as may be necessary to comply with
the provisions of the Securities Act with
respect to the disposition of all securities
covered by the Registration Statement;
(c) furnish such number of prospectuses,
prospectus supplements, and other documents
incident thereto, including any amendment of
or supplement to the prospectus, as Abbott
from time to time may reasonably request;
(d) cause all Shares registered as described
herein to be listed on any securities
exchange or quoted on any quotation service
on which similar securities issued by ABS
are then listed or quoted;
(e) provided a transfer agent and registrar for
all Registrable Securities registered
pursuant to the Registration Statement and a
CUSIP number for all such Shares;
(f) otherwise use reasonable efforts to comply
with all applicable rules and regulations of
the SEC; and
(g) file the documents required of ABS and
otherwise use reasonable efforts to maintain
requisite blue sky clearance in:
(i) all jurisdictions in which any of
the Shares are originally sold; and
(ii) all other states specified in
writing by Abbott, provided as to
this clause (ii), however, that ABS
shall not be required to qualify to
do business or consent to service
of process in any state in which it
is not now so qualified or has not
so consented.
2.6 SELLING PROCEDURES.
(a) In the event Abbott intends to sell Shares
pursuant to a Registration Statement, Abbott
shall give ABS five (5) business days notice
of its intent to sell in reliance on such
Registration Statement (the "Notice of
Sale"). ABS may refuse to permit Abbott to
resell any Shares pursuant to the
Registration Statement; provided, however,
that in order to exercise this right, ABS
must
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deliver a certificate in writing within
three (3) business days following the Notice
of Sale to Abbott to the effect that a sale
pursuant to the Registration Statement in
its then current form could constitute a
violation of the federal securities laws. In
such an event, ABS shall either (i) use
commercially reasonable efforts to promptly
amend the Registration Statement, if
necessary, and take all other actions
necessary to allow such sale under the
federal securities laws, and shall notify
Abbott promptly after it has determined that
such sale has become permissible under the
federal securities laws, or (ii) exercise
its right under paragraph (b) below to delay
the sale.
(b) If in the good faith judgment of the Board
of Directors of ABS, after consultation with
counsel, the filing of a Registration
Statement or an amendment thereto or
prospectus supplement so as permit the
proposed sale without a violation of
securities laws would materially adversely
affect a pending or scheduled public
offering, or an acquisition, merger, or
similar transaction, or negotiations of
either of the foregoing, or would require
the disclosure of another material
development prior to the time it would
otherwise be required to be disclosed in a
manner adverse to the best interests of ABS,
then it may decline to permit the resale of
any Shares pursuant to the Registration
Statement for up to a maximum of ninety (90)
days, provided that it may not exercise this
right more than twice in any twelve (12)
month period. Abbott hereby covenants and
agrees that it will not sell any Shares
pursuant to the Registration Statement
during the periods sales in reliance upon
the Registration Statement are prohibited as
set forth in this SECTION 2.6.
2.7 INFORMATION FROM ABBOTT. It shall be a condition
precedent to the obligations of ABS to take any action pursuant to SECTION 2
of this Agreement with respect to the Shares that Abbott shall furnish to ABS
such information as ABS may reasonably request, including information
regarding Abbott, the Shares held by it, the intended method of disposition
of such securities, and such other information as required to effect the
registration of the Shares.
2.8 ASSIGNMENT OF REGISTRATION RIGHTS. The right to
cause ABS to register the Shares pursuant to this Agreement may be assigned
by Abbott to a transferee of the Shares only if:
(a) ABS is, prior to such transfer, furnished
with written notice of the name and address
of such transferee and the Shares with
respect to which such registration rights are
being assigned and a copy of a duly executed
written instrument in form reasonably
satisfactory to ABS by which such transferee
assumes all of the obligations and
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liabilities of its transferor hereunder and
agrees itself to be bound hereby;
(b) immediately following such transfer the
disposition of the Shares by the transferee
is restricted under the Securities Act;
(c) such assignment includes all of the Shares
then held by Abbott; PROVIDED, HOWEVER, that
such share limitation shall not apply to
transfers by Abbott to its affiliates if all
such transferees or assignees agree in
writing to appoint a single representative as
their attorney-in-fact for the purpose of
receiving any notices and exercising their
rights under this Agreement; and
(d) Abbott guarantees the performance of the
transferee of its obligations under this
Agreement.
2.9 TERMINATION OF REGISTRATION RIGHTS. The
registration rights provided in this Agreement shall terminate if Abbott may
sell all of the Shares pursuant to Rule 144 in any three (3) month period.
Upon the termination of registration rights pursuant to this SECTION 2.9, ABS
may withdraw the Registration Statement, or any portion thereof, covering the
Shares.
2.10 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934.
With a view to making available to Abbott the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the
SEC that may at any time permit Abbott to sell securities of ABS to the
public without registration or pursuant to a registration on Form S-3, ABS
agrees to:
(a) make and keep public information available,
as those terms are understood and defined in
SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all
reports and other documents required of ABS
under the Securities Act and the Exchange
Act; and
(c) furnish to Abbott, so long as Abbott owns
any Shares, forthwith upon request (i) a
written statement by ABS that it has complied
with the reporting requirements of SEC
Rule 144, the Securities Act and the Exchange
Act, or that it qualifies as a registrant
whose securities may be resold pursuant to
Form S-3, (ii) a copy of the most recent
annual or quarterly report of ABS and such
other reports and documents so filed by ABS,
and (iii) such other information as may be
reasonably requested in availing Abbott of
any rule or regulation of the SEC that
permits the selling of any such securities
without registration or pursuant to such form.
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3. INDEMNIFICATION AND CONTRIBUTION
3.1 INDEMNIFICATION BY ABS. ABS agrees to indemnify
and hold harmless Abbott, each of Xxxxxx'x directors, officers and U.S.
wholly-owned subsidiaries, and each person, if any, who controls Abbott
within the meaning of the Securities Act or the Exchange Act, from and
against any losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) to which they may become subject (under the Securities
Act or otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon
any untrue statements of a material fact contained in (or upon the omission
of a material fact from) a Registration Statement delivered or circulated by
Abbott in connection with a sale of ABS securities by Abbott, or arise out of
any failure by ABS to fulfill any undertaking included in the Registration
Statement, and ABS will, as incurred reimburse Abbott and such persons for
any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim; provided,
however, that ABS shall not be liable in any such case to the extent that
such loss, claim damage or liability arise out of, or is based upon (i) an
untrue statement made in (or upon the omission of a material fact from) such
Registration Statement in reliance upon and in conformity with written
information furnished to ABS by or on behalf of Abbott specifically for use
in preparation of the Registration Statement, (ii) the failure of Abbott to
comply with the covenants or agreements contained in SECTION 2.6 hereof, or
(iii) any untrue statement or omission in any prospectus that is corrected in
any subsequent prospectus that was delivered to Abbott prior to the pertinent
sale or sales by Abbott.
3.2 INDEMNIFICATION BY XXXXXX. Xxxxxx agrees to
indemnify and hold harmless ABS, each of ABS's directors and officers, and
each person, if any, who controls ABS within the meaning of the Securities
Act or the Exchange Act, from and against any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) to which they may
become subject (under the Securities Act or otherwise) insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon: (i) either an untrue statement made
in or the omission of a material fact from such Registration Statement in
reliance upon and in conformity with written information furnished to ABS by
or on behalf of Abbott specifically for use in preparation of the
Registration Statement, (ii) the failure of Abbott to comply with the
covenants or agreements contained in SECTION 2.6 hereof, or (iii) any untrue
statement or omission in any prospectus that is corrected in any subsequent
prospectus that was delivered to Abbott prior to the pertinent sale or sales
by Xxxxxx, and Xxxxxx will, as incurred, reimburse ABS and such persons for
any legal or other expenses reasonably incurred in investigating, defending,
or preparing to defend any such action, proceeding, or claim; provided,
however, that Abbott shall not be liable for any amount in excess of the
amount by which the net amount received by Abbott from the sale of the Shares
to which such loss relates minus the amount of any damages which Abbott has
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission
3.3 INDEMNIFICATION PROCEDURES. Promptly after
receipt by any indemnified party of a notice of a claim or the beginning of
any action in respect of which indemnity is to be sought against an
indemnifying person pursuant to this SECTION 3, such indemnified person shall
notify the indemnifying person in writing of such claim or of the
commencement of such action and, subject to the provisions hereinafter
stated, in case any such action shall be brought against
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an indemnified person and the indemnifying person shall have been notified
thereof, the indemnifying person shall be entitled to participate therein,
and, to the extent that it shall wish, to assume the defense thereof, with
counsel reasonably satisfactory to the indemnified person. After notice from
the indemnifying person to such indemnified person of the indemnifying
person's election to assume the defense thereof, the indemnifying person
shall not be liable to such indemnified person for any legal expenses
subsequently incurred by such indemnified person in connection with the
defense thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate in the reasonable
judgment of the indemnified person for the same counsel to present both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel
at the expense of such indemnifying person.
3.4 CONTRIBUTION. If the indemnification provided
for in this SECTION 3 is unavailable to or insufficient to hold harmless an
indemnified party under SECTION 3.1 or 3.2 above in respect of any losses,
claims, damages, or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of ABS on one
hand and Abbott on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault 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 related to information
supplied by ABS on one hand or Abbott on the other and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. ABS and Abbott agree that it would not be
just and equitable if contribution pursuant to this SECTION 3.4 were
determined by PRO RATA allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this SECTION 3.4. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above in this SECTION 3.4 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
3.5 CONTINUING OBLIGATIONS. The obligations of ABS
and Abbott under this SECTION 3 shall survive the completion of the offering
of the Shares pursuant to the Registration Statement and shall be in addition
to any liability that ABS and Abbott may otherwise have.
4. MISCELLANEOUS.
4.1 SURVIVAL OF WARRANTIES. The warranties,
representations and covenants of ABS and Abbott contained in or made pursuant
to this Agreement shall survive the execution and delivery of this Agreement.
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4.2 ENTIRE AGREEMENT, CONTROLLING DOCUMENT. This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, and understandings between the parties with respect to the
subject matter hereof, whether oral or in writing.
4.3 COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
4.4 DELAY AND WAIVER. No delay on the part of either
party in exercising any right under this Agreement shall operate as a waiver
of such right. The waiver by either party of any other term or condition of
this Agreement shall not be construed as a waiver of a subsequent breach or
failure of the same term or condition or a waiver of any other term or
condition contained in this Agreement.
4.5 GOVERNING LAW. This Agreement shall be governed
by and construed under the laws of the State of Delaware without regard to
conflicts of law principles.
4.6 NOTICES, ETC. All notices and other
communications required or permitted hereunder shall be in writing and shall
be sent by personal delivery, facsimile, overnight courier or mailed by
certified or registered mail, postage prepaid, return receipt requested, to
the facsimile number or address as follows:
ABS: American Biogenetic Sciences, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chairman
with a copy (which will not constitute notice)
to:
Brown, Rudnick, Freed & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxxx: Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxx. 000, Xxxx. XX00
Xxxxxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
Attention: Senior Vice President,
Pharmaceutical Operations
with a copy (which will not constitute notice)
to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxx. 364, Bldg. AP6D
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Telephone: (847) 937 - 8906
Facsimile: (847) 938 - 6277
Attention: Senior Vice President, Secretary
and General Counsel
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this SECTION 4.6. Such notices or other
communications shall be deemed delivered upon receipt, in the case of
overnight delivery, personal delivery, or facsimile transmission (as
evidenced by the confirmation thereof), or 2 days after deposit in the mails
(as determined by reference to the postmark).
4.7 TITLES AND SUBTITLES. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
4.8 EXPENSES. Each party shall pay all costs and
expenses that it incurs with respect to the negotiation, execution, and
delivery of this Agreement.
4.9 ALTERNATIVE DISPUTE RESOLUTION. The parties
agree to effectuate all reasonable efforts to resolve in an amicable manner
any and all disputes between them in connection with this Agreement. The
parties agree that any dispute that arises in connection with this Agreement,
which cannot be amicably resolved informally shall be finally settled as set
forth in the Alternative Dispute Resolution provisions of Exhibit C to the
License Agreement.
4.10 AMENDMENTS AND WAIVERS. Any term of this
Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of ABS and the
Abbott.
4.11 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
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4.12 FURTHER ASSURANCES. ABS and Abbott shall do and
perform or cause to be performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments, or
documents as the other party may reasonably request from time to time in
order to carry out the intent and purposes of this Agreement and the
consummation of the transactions contemplated by the Agreement. Neither ABS
nor Abbott shall voluntarily undertake any course of action inconsistent with
the satisfaction of the requirements applicable to them as set forth in this
Agreement, and each shall promptly do all such acts and take all such
measures as may be appropriate to enable them to perform as early as
practicable their obligations under this Agreement.
4.13 NO THIRD PARTY RIGHTS. Nothing in this Agreement
shall create or be deemed to create any rights in any person or entity not a
party to his Agreement.
4.14 MUTUAL DRAFTING. This Agreement is the joint
product of ABS and Abbott and each provision of the Agreement has been
subject to consultation, negotiation and agreement of ABS and Abbott and
their respective legal counsel and advisers and any rule of construction that
a document shall be interpreted or construed against the drafting party shall
not apply.
4.15 SEC RULE CHANGES. To the extent necessary to
give effect to the agreements and understandings of the parties set forth in
this Agreement, any reference in this Agreement to any forms, rules,
regulations, or procedures of the SEC or any provision of the Securities Act
or the Exchange Act existing as of the date of this Agreement shall be deemed
to refer to any modifying, supplementing, or succeeding rules, regulations
procedures, or provisions as may exist from time to time after the date of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By:
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Xxxxxx X. Xxxxx, Chairman
XXXXXX LABORATORIES
By:
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Its:
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
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