EXHIBIT 10.24
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PARADIGM GENETICS, INC.
REGISTRATION RIGHTS AGREEMENT
Dated as of December 20, 2001
PARADIGM GENETICS, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
December , 2001, and is entered into by and among Paradigm Genetics, Inc., a
Delaware corporation (the "Company"), and PE Corporation (NY), a New York
corporation, acting through its Celera Genomics Group ("Shareholder").
RECITALS
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WHEREAS, on the date hereof the Shareholder has agreed to acquire 422,459
shares (the "Common Shares") of the Company's common stock, par value $.01 per
share (the "Common Stock"), pursuant to a Stock Purchase Agreement, dated as of
December 3, 2001 (the "Purchase Agreement") for consideration including the sale
to the Company of the plant genotyping business of the Shareholder (the
"Business").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and the Purchase Agreement, and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I.
GENERAL PROVISIONS; DEFINITIONS; INTERPRETATION
Section 1.01 Definitions. As used in this Agreement, the following
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terms have the meanings indicated below or in the referenced sections of this
Agreement:
(a) "Common Shares." As defined in the recitals.
(b) "Common Stock." As defined in the recitals.
(c) "Exchange Act." The Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
(d) "Holder." The Shareholder and each Person to whom Registrable
Securities have been duly assigned in accordance with the terms of this
Agreement.
(e) "NASD." The National Association of Securities Dealers, Inc.
(f) "Person." An individual, a partnership, a corporation, a limited
liability company or partnership, an association, a joint stock company, a
trust, a business trust, a joint venture, an unincorporated organization or
a government entity or any department, agency, or political subdivision
thereof.
(g) "Registrable Securities." Common Shares held by a Holder.
(h) "Registration Expenses." As defined in Section 4.01 hereof.
(i) "SEC." The United States Securities and Exchange Commission.
(j) "Securities Act." The Securities Act of 1933, as amended, and the
rules and regulations thereunder.
ARTICLE II.
SHELF REGISTRATION
Section 2.01 Shelf Registration. As soon as reasonably practicable
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after the date hereof, the Company agrees to file with the SEC a shelf
registration statement on Form S-3 (together with all amendments thereto, the
"Registration Statement"), with respect to the registration under the Securities
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Act for resale of the Registrable Securities. The Company will use its
reasonable best efforts to cause the Registration Statement to be declared
effective under the Securities Act as promptly as practicable. The Company will
use its reasonable best efforts to keep the Registration Statement continuously
effective until the earliest of (a) the date when all of the Registrable
Securities covered thereby have been sold thereunder or pursuant to Rule 144
(including but not limited to sales pursuant to Rule 144(k))under the Securities
Act; (b) the date on which the Holders owning a majority of the Registrable
Securities agree to the withdrawal of the Registration Statement; or (c) the
first date on which all of the shares of Registrable Securities covered thereby
could, in the written opinion of counsel for the Company, be sold either (i)
pursuant to Rule 144(k) under the Securities Act or any successor thereto or
(ii) in any three month period pursuant to Rule 144 under the Securities Act or
any successor rule thereto (the "Shelf Registration Period"). The Company
further agrees to supplement or make amendments to the Registration Statement,
if required by the rules, regulations, or instructions applicable to the
registration form utilized by the Company or by the Securities Act or rules and
regulations thereunder for the Registration Statement.
ARTICLE III.
REGISTRATION PROCEDURES
Section 3.01 Obligations of the Company. The Company shall use its
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best efforts to register and to permit the sale of the Registrable Securities in
accordance with the intended method of disposition. To carry out this
obligation, the Company shall as expeditiously as practicable:
(a) prepare and file with the SEC the Registration Statement and use
commercially reasonable efforts to cause the Registration Statement to
become effective. At least five (5) business days before filing the
Registration Statement or prospectus or at least three (3) business days
before filing any amendments or supplements thereto, the Company will
furnish to the counsel for the Shareholder copies of all documents proposed
to be filed for that counsel's review and approval, which approval shall
not be unreasonably withheld or delayed;
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(b) immediately notify the Holders of any stop order threatened or
issued by the SEC and take all actions reasonably required to prevent the
entry of a stop order or if entered to have it rescinded or otherwise
removed;
(c) prepare and file with the SEC such amendments and supplements to
the Registration Statement and the corresponding prospectus necessary to
keep the Registration Statement effective for the Shelf Registration
Period; and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by the Registration Statement
during such period in accordance with the Holder's intended methods of
disposition as set forth in the Registration Statement;
(d) furnish to each Holder such number of copies of the Registration
Statement, each amendment and supplement thereto (in each case including
all exhibits), the corresponding prospectus (including each preliminary
prospectus), and such other documents as such Holder may reasonably request
to facilitate the disposition of such Holder's Registrable Securities;
(e) use its reasonable best efforts to register or qualify the
Registrable Securities under such securities or blue sky laws of
jurisdictions in the United States of America as any Holder reasonably
requests and do any and all other reasonable acts and things that may be
necessary or advisable to enable a Holder to consummate the disposition of
the Holder's Registrable Securities in such jurisdiction; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any jurisdiction in which it
is not then qualified or where such qualification would subject it to
taxation or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject;
(f) notify each Holder, at any time when a prospectus is required to
be delivered under the Securities Act, of the occurrence of any event as a
result of which the prospectus or any document incorporated therein by
reference contains an untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein not misleading
in light of the circumstances under which such statements were made, and,
except as permitted pursuant to Section 3.05 hereof, prepare a supplement
or amendment to the prospectus or any such document incorporated therein so
that thereafter the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
such statements were made;
(g) use its best efforts to cause all registered Registrable
Securities to be listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed, or cause all
registered Registrable Securities to be authorized for trading on NASDAQ,
as the case may be;
(h) cooperate with each Holder to facilitate the timely preparation
and delivery of certificates (if such Holder then holds physical
certificates representing Registrable Securities), not bearing any
restrictive legends and in such denominations and registered
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in such names as each Holder may request, representing Registrable
Securities to be sold pursuant to the Registration Statement or Rule 144;
and
(i) take all other steps reasonably necessary to effect the
registration and resale of the Registrable Securities contemplated hereby
in accordance with the terms of this Agreement.
Section 3.02 Holder Information. The Company may require each Holder to
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furnish to the Company information regarding each such Holder and the
distribution of the securities subject to the registration, and such Holders
shall furnish all such information reasonably requested by the Company. If the
Registration Statement or prospectus contained therein, including any amendment
or supplement thereto (the "Prospectus"), refers to any Holder by name or
otherwise as the Holder of any securities of the Company, then such Holder shall
promptly notify the Company if any fact occurs with respect to the information
furnished by the Holder to the Company, or any information approved by such
Holder or its authorized representative for inclusion in the Registration
Statement, Prospectus or any prospectus supplement, regarding such Holder and
the distribution of the securities subject to registration owned by such Holder
which results in the Registration Statement or the Prospectus containing an
untrue statement of material fact with respect to such information or omitting
to state a material fact with respect to such information required to be stated
therein or necessary to make the statements therein with respect to such
information not misleading and shall provide to the Company such information as
shall be necessary to enable the Company to prepare a supplement or
post-effective amendment to such Registration Statement or Prospectus or any
document incorporated therein by reference or file any other document required
so that the Registration Statement or Prospectus will not contain an untrue
statement of a material fact with respect to such information or omit to state a
material fact with respect to such information required to be stated therein.
Section 3.03 Notice to Discontinue. Each Holder agrees by acquisition of
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such securities that, upon receipt of any notice from the Company of any event
of the kind described in Section 3.01(f), each Holder will discontinue
disposition of Registrable Securities until such Holder receives copies of the
supplemented or amended prospectus contemplated by Section 3.01(f). In addition,
if the Company requests, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering the Registrable Securities
current at the time of receipt of the notice.
Section 3.04 Holder Obligations. Each Holder covenants and agrees to (i)
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comply with all prospectus delivery requirements of the Securities Act and with
all anti-stabilization, anti-manipulation and similar provisions of Section 10
of the Exchange Act and any rules issued thereunder by the SEC, and to furnish
to the Company information about sales made in such public offering and (ii) at
the end of the Shelf Registration Period discontinue sales of shares pursuant to
the Registration Statement and advise the Company of the number of Registrable
Securities remaining unsold.
Section 3.05 Blackout Period. If (i) there is material non-public
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information regarding the Company which the Company's Board of Directors (the
"Board") reasonably
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determines not to be in the Company's best interest to disclose at such time,
or (ii) there is a significant business opportunity (including, but not limited
to, the acquisition or disposition of assets (other than in the ordinary course
of business) or any merger, consolidation, tender offer or other similar
transaction) available to the Company which the Board reasonably determines not
to be in the Company's best interest to disclose at such time and which the
Company would be required to disclose under the Registration Statement, then the
Company may suspend effectiveness of the Registration Statement and suspend the
sale of Registrable Securities under the Registration Statement for a period not
to exceed thirty (30) consecutive days (a "Blackout Period"), provided that the
Company may not suspend such obligations under this Section 3.05 for more than
forty-five (45) days in the aggregate during any twelve (12) month period; and
provided, further, that no such suspension shall be permitted for consecutive
thirty (30) day periods, arising out of the same set of facts, circumstances or
transactions.
ARTICLE IV.
REGISTRATION EXPENSES
Section 4.01 Generally. All Registration Expenses incident to the
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Company's performance of or compliance with this Agreement shall be paid by the
Company. The term "Registration Expenses" includes without limitation all
registration filing fees, reasonable professional fees and other reasonable
expenses of the Company's compliance with federal, state and other securities
laws, printing expenses, messenger, telephone and delivery expenses; reasonable
fees and disbursements of counsel for the Company; reasonable fees and
disbursements of the Company's independent certified public accountants
(including the expenses of any audit or "comfort" letters required by or
incident to performance of the obligations contemplated by this Agreement); and
applicable stock exchange and NASD registration and filing fees. The term
"Registration Expenses" does not include any discounts or commissions to any
broker attributable to the sale of Registrable Securities or any fees (including
but not limited to attorney fees) or expenses incurred by any Holder in
connection with this Agreement.
ARTICLE V.
INDEMNIFICATION
Section 5.01 Indemnification by Company. To the fullest extent
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permitted by law, the Company agrees to indemnify each Holder, its affiliates,
and their officers, directors, trustees, partners, employees, advisors and
agents, and each Person who controls each Holder (within the meaning of the
Securities Act and the Exchange Act) against all losses, claims, damages,
liabilities and expenses caused by (i) any violation by the Company of its
obligations arising in connection herewith under the Securities Act, the
Exchange Act, any state securities or blue sky laws or any rule or regulation
thereunder, or (ii) any untrue or allegedly untrue statement of material fact
contained in any registration statement under which such Registrable Securities
were registered under the Securities Act, any prospectus or preliminary
prospectus contained therein or any omission or alleged omission to state a
material fact required to be stated therein or
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necessary to make the statements therein not misleading in light of the
circumstances under which such statements were made; except to the extent the
untrue or allegedly untrue statement or omission or alleged omission resulted
from information that such Holder furnished in writing to the Company expressly
for use therein or relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was approved by such Holder or its
authorized representative for use in the Registration Statement, Prospectus or
any prospectus supplement; and provided, that with respect to any amended or
supplemented Prospectus, the foregoing agreement to indemnify shall not apply or
inure to the benefit of any Holder from whom the Person asserting any loss,
claim, damage, liability or expense purchased Registrable Securities, or any
person controlling such Holder, if copies of an amended or supplemented
Prospectus were delivered in a timely manner to the Holder pursuant to this
Agreement and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendment or supplements thereto) was not sent
or given by or on behalf of such Holder to such Person, if required by law so to
have been delivered, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage, liability or
expense.
Section 5.02 Indemnification by Holders. In connection with any
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registration statement filed by the Company pursuant to this Agreement, each
Holder will furnish to the Company in writing such information and affidavits as
the Company reasonably requests for use in connection with such registration
statement or prospectus included therein and each Holder agrees to indemnify, to
the extent permitted by law, the Company, its directors, officers, trustees,
partners, employees, advisors and agents, and each Person who controls the
Company (within the meaning of the Securities Act and the Exchange Act) against
any losses, claims, damages, liabilities and expenses resulting from any untrue
or allegedly untrue statement of a material fact or any omission or alleged
omission to state a material fact required to be stated in the registration
statement or prospectus or any amendment thereof or supplement thereto necessary
to make the statements therein not misleading in light of the circumstances
under which such statements were made, but (i) only to the extent that the
untrue or allegedly untrue statement or omission or alleged omission is
contained in or omitted from any information or affidavit such Holder furnished
in writing to the Company expressly for use therein or relates to such Holder or
such Holder's proposed method of distribution of Registrable Securities and was
approved by such Holder or its authorized representative for use in the
Registration Statement, Prospectus or any prospectus supplement, and (ii) only
in an amount not exceeding the net proceeds received by such Holder with respect
to securities sold pursuant to such registration statement.
Section 5.03 Indemnification Proceedings. Any Person entitled to
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indemnification under this Agreement will (a) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless the indemnified party shall have been advised by counsel that a
conflict of interest is likely to exist between the indemnified and indemnifying
parties with respect to the claim, permit the indemnifying party to assume the
defense of the claim with counsel reasonably satisfactory to the indemnified
party (in which event, the indemnifying party shall not be responsible for the
fees and expenses of any separate counsel employed by the indemnified party). If
the indemnifying party does not assume the defense, the indemnifying party will
not be liable for any settlement made without its consent (but that consent may
not be unreasonably withheld). No indemnifying party will consent to
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entry of any judgment or will enter into any settlement (a) that does not
include as an unconditional term thereof the claimant's or plaintiff's release
of the indemnified party from all liability concerning the claim or litigation
or (b) that contains any admission of guilt on the part of any indemnified
party. An indemnifying party who is not entitled to or elects not to assume the
defense of a claim will not be under an obligation to pay the fees and expenses
of more than one counsel in each applicable jurisdiction for all parties
indemnified by the indemnifying party with respect to the claim, unless the
indemnified party shall have been advised by counsel that a conflict of interest
is likely to exist between the indemnified party and any other indemnified party
with respect to the claim, in which event the indemnifying party shall be
obligated to pay the fees and expenses of no more than one additional counsel
for the indemnified parties.
Section 5.04 Contribution. If the indemnification provided for in
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Section 5.01 or 5.02 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party thereunder shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative fault
of the Company and each Holder in connection with the statements or omissions
that resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of the
Company and each Holder 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 Company or by a Holder and the parties' relative intent,
knowledge, and opportunity to correct the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material fact.
The parties hereto agree that it would not be just and equitable if
contribution pursuant this Section 5.04 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding anything herein to the contrary, no Holder shall be required to
contribute any amount in excess of the lesser of (i) the net proceeds of the
offering (before deducting expenses, if any) received by such Holder less the
amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and (ii) the proportion of the total losses, claims, damages,
liabilities or expenses indemnified against equal to the proportion of the total
amount of securities sold under such registration statement sold by such
participating Holder. 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.
Section 5.05 Miscellaneous. The amount paid or payable by an
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indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Article V will be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. The indemnification and contribution provided for in
this Article V will remain in full force and effect regardless of any
investigation made by or on behalf
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of the indemnified parties or any officer, director, employee, agent or
controlling person of the indemnified parties.
ARTICLE VI.
RULE 144
Section 6.01 Rule 144. The Company covenants that it will file the
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reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder, and it will take
such further action as each Holder reasonably may request, all to the extent
required from time to time, to enable each Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, or (b) any similar
rule or regulation hereafter adopted by the SEC. Upon the request of a Holder,
the Company will deliver to such Holder a written statement as to whether it has
complied with Rule 144's or any successor rules' requirements. The Company also
covenants that in such event it will provide all such information and it will
take such further action as such Holder reasonably may request to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of Rule 144 under the Securities Act or any successor
rule requirements.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Recapitalizations, Exchanges, etc. The provisions of this
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Agreement shall apply to the full extent set forth herein with respect to (a)
the Common Shares held by each Holder, (b) any and all shares of capital stock
of the Company into which Common Shares are converted, exchanged or substituted
in any recapitalization or other capital reorganization by the Company, and (c)
any and all equity securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in conversion of, in exchange for or in
substitution of, such Common Shares. The provisions of this Agreement shall be
deemed appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof. If
requested by a Holder, the Company shall use its best efforts to cause any
successor or assign (whether by sale, merger or otherwise) to enter into a new
registration rights agreement with such Holder on terms substantially the same
as this Agreement as a condition of any such transaction, provided that the
absence of such new agreement shall not alter in any respect the obligations of
the successor or assign under this Agreement by virtue of the operation of
Section 7.02 below.
Section 7.02 Benefit of Parties; Assignment. All of the terms and
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provisions of this Agreement shall be binding on and inure to the benefit of the
parties and their respective successors including any successor to the Company
or its business (whether by way of sale, merger or otherwise) and permitted
assigns. Assigns of a Holder shall be considered "permitted
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assigns" and therefore Holders under this Agreement only if Registrable
Securities hereunder have been assigned, in whole or in part, upon notice to the
Company, by a Holder to such assign (i) in whose hands such Registrable
Securities are not transferable pursuant to Section 4(1) of the Securities Act,
(ii) who has agreed in writing to be bound by the terms of this Agreement, and
(iii) a copy of whose agreement to be bound by this Agreement and the name and
address of such assignee have been furnished to the Company within a reasonable
time after such assignment.
Section 7.03 Cooperation. The parties agree that after execution of
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this Agreement they will from time to time, upon the request of any other party
and without further consideration, execute, acknowledge and deliver in proper
form any further instruments and take such other action as any other party may
reasonably require to carry out effectively the intent of this Agreement.
Section 7.04 No Agency. The relationship among the parties to this
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Agreement shall be strictly contractual in nature and, except as required by or
implicit in law, there shall not be any agency or fiduciary relationship among
them arising out of this Agreement. No party to this Agreement shall identify
itself as or hold itself out to be the agent of any other party to this
Agreement or an affiliate of any such other party.
Section 7.05 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF
DELAWARE WITHOUT CONSIDERATION OF PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS.
Section 7.06 Specific Performance; Remedies. Each of the parties
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agrees that damages for a breach of or default under this Agreement would be
inadequate and that in addition to all other remedies available at law or in
equity the parties and their successors and assigns shall be entitled to
specific performance or injunctive relief, or both, in the event of a breach or
a threatened breach of this Agreement. In any legal action or proceeding brought
to enforce any provision of this Agreement, the prevailing party shall be
entitled to recover all reasonable expenses, charges, court costs and reasonable
attorneys' fees in addition to any other available remedy at law or in equity.
All rights and remedies specified herein are in addition to, and not in
substitution of, all rights and remedies available at law or in equity.
Section 7.07 Notices. All notices, requests, demands or other
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communications made pursuant to this Agreement shall be in writing in the
English language and shall be deemed to have been duly given (i) if delivered
personally, upon delivery, (ii) if delivered by registered or certified mail
(postage prepaid, return receipt requested), upon the earlier of actual delivery
or three (3) business days after being mailed, (iii) if delivered by overnight
courier or similar service, upon delivery, or (iv) if given by telecopy, upon
receipt of confirmation of transmission by telecopy; in each case to the
recipient party, at the following addresses:
(a) If to Shareholder, to:
PE Corporation (NY)
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Celera Genomics Group
00 Xxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: President
with a copy to:
Applera Corporation
000 Xxxxxxx 0
Xxxxxxx, Xxxxxxxxxxx 00000
Facsimile: 203) 840-2922
Telephone: (000) 000-0000
Attention: Secretary
(b) If to the Company, to:
Paradigm Genetics, Inc.
000 Xxxxxxxxx Xxxxx
Administrative Xxxx. #0
Xxxxxxxx Xxxxxxxx Xxxx,
Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: President and General Counsel
with a copy to:
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Mintz, Levin, Xxxx, Ferreis, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq. And Xxxx
Xxxxxxx, Esq.
(c) If to any Holder other than Shareholder, to such
Holder's address as set forth on such Holder's signature page to this Agreement.
Any party may change its address for purposes of this Section 7.07 by notice to
the others of such change in the manner specified above. If any such notices or
other communications would otherwise be deemed given on a day which is not a
business day, the delivery shall be deemed to have occurred the first business
day following such day.
Section 7.08 Entire Agreement. This Agreement constitutes the
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entire and sole agreement and understanding between the parties hereto with
respect to the subject matter hereof
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and supersedes any prior or contemporaneous understanding, agreements,
representations or warranties, whether oral or written, with respect to the
subject matter hereof.
Section 7.09 Severability Any provision of this Agreement which
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may be determined by any court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in such jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Moreover, if any one or
more provisions contained in this Agreement shall for any reason be held by any
court of competent jurisdiction to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed, by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
Section 7.10 Time. Subject to any required notice and the lapse
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of any applicable cure periods, time is of the essence of this Agreement with
respect to each and every provision of this Agreement in which time is
specifically expressed to be a factor.
Section 7.11 Modification, Amendment, Waiver. No modification or
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amendment of any provision of this Agreement shall be effective unless approved
in writing by the parties to the Agreement. No party shall be deemed to have
waived compliance by any other party with any provision of this Agreement unless
such waiver is in writing, and the failure of any party at any time to enforce
any of the provisions of this Agreement shall in no way be construed as a waiver
of such provisions and shall not affect the rights of any party thereafter to
enforce such provisions in accordance with their terms. No waiver of any
provision of this Agreement shall be deemed to be a waiver of any other
provision of this Agreement. No waiver of any breach of any provision of this
Agreement shall be deemed the waiver of any subsequent breach thereof or of any
other provision of this Agreement. The foregoing notwithstanding, if at any time
there shall be more than one Holder entitled to the benefits of this Agreement,
any modification or amendment of this Agreement or waiver of any provision of
this Agreement approved by Holders holding a majority of Registrable Securities
shall be binding on all Holders, provided that no Holder shall be bound by any
amendment, modification or waiver which does not apply to all Holders or which
adversely affects the rights of such Holder in a manner which differs from, or
to an extent greater than, the effect on any other Holder (unless such
difference or greater extent is solely a result of the relative number of
Registrable Securities held by such Holder).
Section 7.12 Counterparts. This Agreement may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
with the same effect as if all parties had signed the same document. All such
counterparts will be deemed to be an original, shall be construed together and
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
PE CORPORATION (NY) acting through its
CELERA GENOMICS GROUP
By: /s/ Xxxxx Xxxxxxx
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Name:
Title:
PARADIGM GENETICS, INC.
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
TRA 1601411v1
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