EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT, dated as of December 28, 1998 (the
"Agreement"), between Xxxxxxxxx Laboratories, Inc., a Delaware corporation
(the "Company"); J. Xxxxxxx Xxxxxxx; The Nassau Group, Inc., SEP FBO J.
Xxxxxxx Xxxxxxx; R. Xxxxx Xxxx; J. Xxxxxx Xxxxxxx; NMB Investment Group; AB
Associates LP; Asen and Co., Inc.; FBO SDFJ, Inc.; Xxxx Xxxxxx Xxxxxxxx C/F
Xxxxx X. Xxxxxx XXX Rollover DTD 2/17/95; Woodmere Court Investments;
Xxxxxx Xxxxxx; Xxx Xxxxxxx; Xxxxxx X. Xxxxxx; Xxxx X. Xxxxxx; Xxxxxx X.
Xxxx; Xxxxx X. Xxxxxxxx; The Nassau Group, Inc., SEP FBO Xxxxxx X. Xxxxxx;
Xxxxxxx Xxxxxxxxxxx; and Xxxxxxx X. Xxxxx (together, the "Investors").
The Company and the Investors have entered into Subscription Agreements
dated as of December 28, 1998, pursuant to which, among other things, the
Company sold to the Investors in the aggregate principal amount of 3,055,556
shares of Common Stock, par value $.01 per share (the "Common Stock") for
$550,000.
In consideration of the foregoing and of the covenants and obligations set
forth below, the parties agree as follows:
1. REGISTRATION ON REQUEST.
(a) REQUEST. Subject to the limitations set forth in Section 1(b), upon
written notice to the Company by any Investor requesting registration of its
Registrable Securities (as defined in Section 9(b)), the Company shall use its
best efforts to effect the registration under the Securities Act of 1933 (the
"Securities Act") of all or part of the Registrable Securities in minimum
amounts of 25% of Registrable Securities held by each such requesting Investor
or Investors (each, an "Initiating Investor"). The Company promptly shall give
notice of such requested registration to all other Holders (as defined in
Section 9(b)) of Registrable Securities who are entitled pursuant to Section 2
to join in such registration and, thereupon, the Company shall use its best
efforts to effect, on the earliest possible date, the registration under the
Securities Act for public sale (in accordance with the method of disposition
specified in the notice from the requesting Holders) of: (i) the Registrable
Securities that the Company has been requested to register by such Initiating
Investor or Investors; and (ii) the other Registrable Securities that the
Company has been requested to register by the Holders thereof but only if
written notice was given to the Company within 20 days after the giving of such
notice by the Company.
(b) LIMITATIONS. The Company shall not be required to effect a
registration pursuant to Section 1(a) on more than a total of three occasions,
with no more than one request by any Investor; provided further, that a request
may not be made unless the requesting Investor can establish that at least 10%
of the Common Stock (i.e., at least 305,556 shares) will be the subject of the
requested registration; it being further
understood and agreed that a registration effected under Section 2 shall not
be counted as a registration under this Section.
(c) EFFECTIVE REGISTRATION STATEMENT. A registration requested pursuant
to this Section 1 shall not be deemed to have been effected, and shall not be
deemed a requested registration for purposes of Section 1(a) and Section 1(b):
(i) unless a registration statement filed under the Securities Act (a
"Registration Statement") covering all Registrable Securities specified in a
notice from an Initiating Investor has become effective and remained effective
in compliance with the provisions of the Securities Act with respect to the
disposition of all of such Registrable Securities covered by such Registration
Statement until the earlier of such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such Registration Statement; (ii) if
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Securities and Exchange
Commission (the "Commission") or other governmental agency or court for any
reason not attributable to the Initiating Investors; or (iii) if the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than by
reason of a failure on the part of the Initiating Investors.
(d) PRIORITY IN REQUESTED REGISTRATION. So long as the Initiating
Investors hold at least 25% of the Registrable Securities issued to the
Investors on the date of this Agreement, the Company shall have the right to
include in any Registration Statement initiated by an Investor pursuant to
this Section 1, for sale in accordance with the method of disposition
specified by the requesting Investors, Common Stock to be sold by the Company
for its own account. If, in the good-faith judgment of the managing
underwriter of any underwritten offering the inclusion of all of the
Registrable Securities requested for inclusion pursuant to this Section 1 and
the Common Stock proposed to be sold by the Company for its own account would
adversely affect the successful marketing of the proposed offering, then the
number of shares of Common Stock to be included in the offering shall be
reduced to the required level, first, by excluding Common Stock to be sold by
the Company for its own account and second, by reducing the participation of
such Initiating Investors and other Holders in such offering pro rata among
such Initiating Investors and other Holders, based upon the amount of
Registrable Securities owned by such Initiating Investors and other Holders.
The Company will not cause any other registration statement with respect to
its Registrable Securities for its own account to become effective less than
120 days after the effective date of any registration requested pursuant to
this Section 1, except in the case of: (i) a registration of securities
pursuant to a Registration Statement on Form S-8 or Form S-4 or any successor
form thereto; (ii) any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation; (iii) any registration statement relating solely to employee
stock option, stock purchase, benefit or similar plans; or (iv) other
registrations required under Section 1.
2. INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If at any time and from time
to time the Company proposes to register any shares of its capital stock under
the Securities Act, whether or not for sale for its own account, on a form and
in the manner that would permit registration of Registrable Securities for the
sale to the public under the Securities Act, the Company will give written
notice to all Holders of its intention to do so. Upon the written request of a
Holder given within 20 days after the giving of any such notice by the Company,
the Company will use its best efforts to cause to be included in such
Registration Statement all of the Registrable Securities so requested for
inclusion by Holders. If the Registration Statement is to cover, in whole or in
part, any underwritten distribution, the Company shall use its best efforts to
cause the Registrable Securities requested for inclusion pursuant to this
Section to be included in the underwriting on the same terms and conditions
(including any lock-up) as the shares otherwise being sold through the
underwriters.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If, in the good faith judgment
of the managing underwriter of any underwritten offering, the inclusion of all
of the Registrable Securities requested for inclusion pursuant to this Section 2
might adversely affect the successful marketing of the proposed offering, then
the number of shares of capital stock and Registrable Securities, if any, to be
included in such registration shall be reduced, such reduction shall be applied,
FIRST by excluding (on a pro rata basis) capital stock of the Company to be sold
by persons other than the Holders, and Registrable Securities proposed to be
sold by all Holders and SECOND, by excluding shares of capital stock to be sold
by the Company for its own account. Notwithstanding the foregoing provisions,
the Company may withdraw or discontinue any registration statement referred to
in this Section 2 without incurring any liability to Holders of Registrable
Securities.
3. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Section 1 or 2 to effect the registration of Registrable
Securities under the Securities Act, the Company will, at its expense, as
expeditiously as possible:
(i) prepare and, in any event within 45 days after a request for
registration has been given to the Company, file with the Commission a
Registration Statement with respect to such Registrable Securities and use
its best efforts to cause such Registration Statement to become effective;
PROVIDED that the Company may withdraw or discontinue any registration of its
securities which is being effected pursuant to Section 2 at any time prior to
the effective date of the Registration Statement;
(ii) prepare and file with the Commission such amendments and
supplements to any Registration Statement referred to in clause (i) of this
Section 3 and the prospectus used in connection therewith as may be necessary
to keep such Registration Statement effective and updated until such time as
all of the Registrable Securities have been disposed of in accordance with
the intended methods of disposition by the Holder or Holders set forth in
such Registration Statement and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the Holder or Holders
thereof set forth in such Registration Statement; PROVIDED that before filing
a Registration Statement or prospectus, or any amendments or supplements
thereto, the Company will furnish, at the Company's expense, to one counsel
selected jointly by the Holders holding a majority of the Registrable
Securities covered by such Registration Statement to represent all Holder's
of Registrable Securities covered by such Registration Statement, copies of
all documents proposed to be filed, which documents will be subject to the
review of such counsel;
(iii) furnish to each Holder of such Registrable Securities: (a) such
number of copies of any Registration Statement referred to in clause (i) of this
Section 3 and of each amendment and supplement thereto (in each case including
all exhibits); (b) such number of copies of the prospectus included in such
Registration Statement (including each preliminary prospectus and summary
prospectus), and any other prospectus filed under Rule 424 under the Securities
Act in conformity with the requirements of the Securities Act; and (c) such
other documents as such Holder may reasonably request,
(iv) use its best efforts to register or qualify such Registrable
Securities covered by any Registration Statement referred to in clause (i) of
this Section 3 under such other securities or blue sky laws of such domestic
jurisdictions as each Holder shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign corporation
in any jurisdiction where, but for the requirements of this clause (iv), it
would not be obligated to be so qualified or to consent to general service of
process in any such jurisdiction;
(v) use its best efforts to cause such Registrable Securities
covered by a Registration Statement to be registered with or approved by such
other domestic governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) cause representatives of the Company to participate in any "road
show" or "road shows" reasonably requested by any underwriter of an
underwritten or "best efforts" offering of any Registrable Securities;
(vii) notify each seller of any such Registrable Securities covered by
a Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or of the Company's becoming
aware that the prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and at
the request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the sellers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing;
(viii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its Holders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the Registration Statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(ix) use its best efforts to list such Registrable Securities on any
securities exchange or automated quotation system on which securities of the
same class are then listed, if such Registrable Securities are not already so
listed and if such listing is then permitted under the rules of such exchange or
system, and to provide a transfer agent and registrar for such Registrable
Securities covered by a Registration Statement not later than the effective date
of such Registration Statement;
(x) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as sellers of a
majority of such Registrable Securities or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
(xi) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or sellers of a
majority of such Registrable Securities shall reasonably request;
(xii) obtain an opinion of counsel for the Company in customary form
and covering matters of the type customarily covered in opinions of issuer's
counsel as the seller or sellers of a majority of such Registration Securities
shall reasonably request; and
(xiii) make available for inspection by any seller of such Registrable
Securities covered by a Registration Statement by any underwriter participating
in any disposition to be effected pursuant to such Registration Statement and by
any attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such Registration Statement.
4. EXPENSES. With respect to each registration effected pursuant to
Section 1 or 2, all Registration Expenses (defined below) in connection with
such registration and the public offering in connection therewith shall be borne
by the Company; PROVIDED that Holders participating in any such registration
shall bear their pro rata share of the underwriting discounts and selling
commissions (on the basis of the number of Registrable Securities of each such
person included in such registration). "Registration Expenses" shall mean any
and all expenses incidental to performance of
or compliance with this Agreement, including, without limitation, (i) all
registration and filing fees of the Commission or the National Association of
Securities Dealers, Inc., (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for
the underwriters in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery expenses,
(iv) all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange or automated quotation
system pursuant to Section 3(ix), (v) the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, (vi) the reasonable fees and
disbursements of one counsel selected (under Section 3(ii)) by the Holders of
a majority of the Registrable Securities being registered to represent all
Holders of the Registrable Securities being registered in connection with
each such registration, (vii) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including fees and
disbursements of counsel for the underwriters, but excluding underwriting
discounts and commissions, (viii) liability insurance if the Company so
desires or if the underwriters so require, and (ix) the reasonable fees and
expenses of any special experts retained by the Company in connection with
the requested registration.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of a registration of any
Registrable Securities pursuant to Section 1 or 2, the Company will indemnify
and hold harmless each Holder of such Registrable Securities included in a
Registration Statement pursuant to the provisions of this Agreement and any
underwriter (as defined in the Securities Act) of such Registrable Securities,
and their respective Affiliates, and each of their successors from and against,
and will reimburse such Holder, underwriter and Affiliate with respect to, any
and all claims, actions, demands, losses, damages, liabilities, costs and
expenses to which such Holder, underwriter or Affiliate may become subject under
the Securities Act or otherwise, including, without limitation, the reasonable
fees and expenses of legal counsel (including those incurred in connection with
any claim for indemnity hereunder) insofar as such claims, actions, demands,
losses, damages, liabilities, costs or expenses (or actions, or proceedings,
whether commenced or threatened in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading or arise out of any
violation by the Company of any rule or regulation under the Securities Act or
any state securities laws applicable to the Company and relating to action of
inaction required of the Company in connection with such registration; PROVIDED
that the Company will not be liable in any case to the extent, but only to the
extent, that any such claim, action, demand, loss, damage, liability, cost or
expense arises out of or is based upon an untrue statement or omission made in
reliance upon and in strict conformity with information furnished by such Holder
or such underwriter in writing specifically for use in the preparation thereof.
This indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Holder, underwriter or Affiliate and shall survive the transfer of such
securities by such Holder or such underwriter.
(b) INDEMNIFICATION BY THE HOLDERS. Each Holder of Registrable
Securities, severally and not jointly, which Registrable Securities are
included in a registration pursuant to the provisions of this Agreement, will
indemnify and hold harmless the Company, each person, if any, who controls
the Company within the meaning of the Securities Act, each officer of the
Company who signs the Registration Statement including such Registrable
Securities, each director of the Company, each underwriter and any person who
controls the underwriter and each of their successors from and against, and
will reimburse the Company and such officer, director, underwriter or
controlling person with respect to, any and all claims, actions, demands,
losses, damages, liabilities, costs or expenses to which the Company or such
officer, director, underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such claims, actions, demands,
losses, damages, liabilities, costs or expenses arise out of or are based
upon any untrue statement of any material fact contained in such Registration
Statement, any prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading; PROVIDED that such Holder will be liable in any such case to the
extent, but only to the extent, that any such claim, action, demand, loss,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or omission made in reliance upon and in strict conformity with
written information furnished by such Holder specifically for use in the
preparation thereof.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by a party to be
indemnified pursuant to the provisions of Section 5(a) or 5(b) (an "indemnified
party") of notice of the commencement of any action involving the subject matter
of the foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the provisions
of Section 5(a) or 5(b), notify the indemnifying party of the commencement
thereof, but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to an indemnified party otherwise than
under this Section and shall not relieve the indemnifying party from liability
under this Section unless, and to the extent, such indemnifying party is
prejudiced by such omission. In case such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after the notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the indemnified
party will not be liable to such indemnified party pursuant to the provisions of
this Section 5(a) and 5(b) for any legal expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that
there may be reasonable defenses available to it that are different from or
additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred. No
indemnifying party shall be liable to an indemnified party for any settlement
of any action or claim without the consent of the indemnifying party and no
indemnifying party may unreasonably withhold its consent to any such
settlement. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability and equitable claims in respect to such claim or litigation.
(d) CONTRIBUTION. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either: (i) any Holder exercising rights under this Agreement or any
underwriter makes a claim for indemnification pursuant to this Section but it
is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section provides for
indemnification in such case; or (ii) contribution under the Securities Act
may be required on the part of any such Holder or underwriter, as the case
may be, in circumstances for which indemnification is provided under this
Section 5, then, and in each such case, the Company on the one hand and such
Holder or underwriter, as the case may be, on the other, will nevertheless
contribute to the aggregate claims, actions, demands, losses, damages,
liabilities, costs or expenses to which they may be subject (after
contribution from others) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the Holder of
Registrable Securities or the underwriter, as the case may be, on the other,
in connection with the statements or omissions that resulted in such claims,
actions, demands, losses, damages, liabilities, costs or expenses, as well as
any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the Holder of Registrable Securities or the
underwriter, as the case may be, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand
or by the Holder of Registrable Securities or the underwriter, as the case
may be, on the other, and each party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
PROVIDED that, in any such case, (A) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty
of such fraudulent misrepresentation and (B) no such Holder or underwriter
will be required to contribute any amount in excess of the proceeds received
by such Holder or underwriter, as the case may be, from the sales of
Registrable Securities covered by the Registration Statement.
(e) OTHER INDEMNIFICATION. Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
6. REPORTING REQUIREMENTS UNDER SECURITIES EXCHANGE ACT OF 1934.
(a) EXCHANGE ACT REPORTING. The Company shall keep effective its
registration under Section 12 of the Securities Exchange Act of 1934 (the
"Exchange Act"), and shall timely file such information, documents and reports
as the Commission may require or prescribe under the Exchange Act, or the
Company shall timely file such information, documents and reports as the
Commission may require or prescribe under Section 13 of the Exchange Act.
(b) FURNISHING INFORMATION TO HOLDERS. The Company shall forthwith upon
request furnish any Holder of Registrable Securities (a) a written statement by
the Company that it has complied with such reporting requirements, (b) a copy of
the most recent Form 10-K or Form 10-Q filed by the Company and a copy of the
most recent annual or quarterly report of the Company distributed to its
shareholders, and (c) such other reports and documents filed by the Company with
the Commission as such Holder may reasonably request in availing itself of an
exemption for the sale of Registrable Securities without registration under the
Securities Act.
(c) RULE 144. The Company acknowledges and agrees that the purposes of
the requirements contained in this Section 6 are to enable any such Holder to
comply with the current public information requirements contained in paragraph
(c) of Rule 144 under the Securities Act should such Holder ever wish to dispose
of any of the securities of the Company acquired by it without registration
under the Securities Act in reliance upon Rule 144 (or any other similar or
successor exemptive provision). In addition, the Company shall take such other
measures and file such other information, documents and reports as shall
hereafter be required by the Commission as a condition to the availability of
Rule 144 under the Securities Act (or any similar or successor exemptive
provision hereafter in effect). The Company also covenants to use its best
efforts, to the extent that it is reasonably within its power to do so, to
qualify for the use of Form S-3. From and after the effective date of the first
Registration Statement filed by the Company, the Company agrees to use its best
efforts to facilitate and expedite transfers of Registrable Securities pursuant
to Rule 144 under the Securities Act (or any similar or successor exemptive
provision hereafter in effect), which efforts shall include timely instructions
to its transfer agent to expedite such transfers of Registrable Securities.
7. SHAREHOLDER INFORMATION. The Company may require each Holder of
Registrable Securities as to which any registration is to be effected pursuant
to this Agreement to furnish the Company in a timely manner such information
with respect to such Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request in writing and as shall
be required by law or by the Commission.
8. SPECIFIC ENFORCEMENT. All of the parties acknowledge that the parties
will be irreparably damaged in the event that this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants or
conditions of this Agreement by any of the parties hereto, the other parties
shall, in addition to all other remedies, be entitled to a temporary or
permanent injunction, without showing any actual damage, or a decree for
specific performance, in accordance with the provisions of this Agreement.
9. SECTION HEADINGS; DEFINITIONS; CERTAIN INTERPRETATIONS.
(a) Section headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.
(b) As used in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" shall mean (a) any person or entity directly or indirectly
controlling, controlled by or under common control with another person or
entity; (b) any person or entity owning or controlling 10% or more of the
outstanding voting securities of such other person or entity; (c) any partner,
officer, director, employee or shareholder of such entity or any parent, spouse,
child, brother, sister or other relative with a relationship (by blood, marriage
or adoption) not more remote than first cousin of any of the foregoing; or (d)
any liquidating trust, trustee or other similar person or entity for any such
person or entity.
"Holder" shall mean (a) the Investors and (b) any other person to which the
rights of registration under this Agreement have been transferred or assigned by
the Investors or their respective transferees.
"Registrable Securities" shall mean (a) shares of Common Stock (including
shares issued upon the conversion of any Notes or the exercise of any other
exchange, conversion or similar right), and (b) any securities issued in respect
of any such shares by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger or consolidation or
reorganization; provided that, such securities shall cease to be Registrable
Securities when such securities have been sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction.
(c) Except as otherwise expressly provided in this Agreement, the
following rules of interpretation apply to this Agreement: (i) the singular
includes the plural and the plural includes the singular, (ii) "or" or "any" are
not exclusive and "include' and "including" are not limiting; (iii) a reference
to any agreement or other contract includes permitted supplements and
amendments; (iv) a reference to a law includes any amendment or modification to
such law and any rules or regulations issued thereunder; (v) a reference to a
person includes its successors and assigns; and (vi) a reference in this
Agreement to a Section is to the Section of this Agreement.
10. NOTICES. All notices, requests and other communications to any party
hereunder shall be in writing and sufficient if delivered personally or sent by
facsimile (with confirmation of receipt) or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Company: Xxxxxxxxx Laboratories, Inc.
00000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: J. Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
If to the Investors: J. Xxxxxxx Xxxxxxx
c/o The Nassau Group, Inc.
00 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
The Nassau Group, Inc.
SEP FBO J. Xxxxxxx Xxxxxxx
c/o The Nassau Groupm, Inc.
00 Xxxx'x Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
R. Xxxxx Xxxx
c/o Asen and Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
NMB Investment Group
c/o Gilder, Gagnon, Xxxxx & Co. L.L.D.
Attn: Xxxxx Xxxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
J. Xxxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (303) 780-9431
AB Associates LP
c/o Asen and Company
Attn: Xxxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Asen & Co., Inc.
c/o Asen and Company
Attn: R. Xxxxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
FBO SDFJ, Inc.
c/o Asen and Company
Attn: R. Xxxxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Xxxx Xxxxxx Xxxxxxxx C/F Xxxxx X. Xxxxxx XXX Rollover
DTD 2/17/95
c/o Asen and Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxxx Xxxxxxxxxxx
c/o Asen and Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Woodmere Court Investments
c/o Asen and Company
Attn: R. Xxxxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxx & Xxx Xxxxxxx
c/o Asen and Company
Attn: R. Xxxxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxx
c/o Asen and Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxx X. Xxxxxx
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxx, XX 00000
Facsimile: (000) 000-0000
The Nassau Group, Inc.
SEP FBO Xxxxxx X. Xxxxxx
c/o The Nassau Group, Inc.
00 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address or facsimile number as the party to whom notice is to
be given may have furnished to the other party in writing in accordance
herewith. Each such notice, request or communication shall be effective when
received or, if given by mail, when delivered at the address specified in this
Section or on the fifth business day following the date on which such
communication is posted, whichever occurs first.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
12. ENFORCEABILITY. It is the desire and intent of the parties hereto
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAWS PROVISIONS).
14. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. EACH OF THE COMPANY
AND THE HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
JURISDICTION OF ANY FEDERAL AND STATE COURT IN DELAWARE SITTING IN DELAWARE AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE LITIGATED
EXCLUSIVELY IN SUCH COURTS. EACH OF THE COMPANY AND THE HOLDER AGREES NOT TO
COMMENCE ANY LEGAL PROCEEDING RELATED HERETO OR THERETO EXCEPT IN SUCH COURT.
EACH OF THE COMPANY AND THE HOLDER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING IN ANY
SUCH COURT AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF
THE HOLDER AND THE COMPANY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
15. WAIVERS, AMENDMENTS. No waiver of any right hereunder by any party
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and by Holders holding at least 51% of the Registrable Securities;
PROVIDED that the provisions of this Section 16 may not be amended unless such
amendment is executed by each Holder.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. The Investors' rights, including the right to request registration
pursuant to Section 1, are assignable to any assignee or transferee of all or a
portion of the Registrable Securities held by the Investors. In addition, and
whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the parties hereto other than the
Company shall also be for the benefit of and enforceable by any subsequent
Holder of any Registrable Securities, subject to the provisions contained
herein.
17. TERMINATION. This Agreement shall terminate upon the earliest to
occur of the following events:
(a) termination by mutual written agreement of the Investors and the
Company;
(b) all Registrable Securities have been sold to or through a broker or
dealer or underwriter in a public distribution or public securities transaction;
or
(c) the fifth anniversary of the date hereof.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the transactions contemplated by this Agreement and
supersedes all prior agreements or understandings among the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXXXXX LABORATORIES, INC.
By: /s/ J. Xxxxxxx Xxxxxx
-------------------------
Title: President
INVESTORS:
/s/ J. Xxxxxxx Xxxxxxx /s/ R. Xxxxx Xxxx
------------------------- -------------------------
X. Xxxxxxx Xxxxxxx Xxxx & Co., Inc.
Title: Account Advisor
/s/ R. Xxxxx Xxxx /s/ R. Xxxxx Xxxx
------------------------- -------------------------
R. Xxxxx Xxxx FBO SDFJ, Inc.
Title: Account Advisor
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxxxxxxx
------------------------- -------------------------
AB Associates LP Xxxxxxx Xxxxxxxxxxx
Title: Managing General Partner
/s/ R. Xxxxx Xxxx /s/ R. Xxxxx Xxxx
------------------------- -------------------------
Xxxx Xxxxxx Xxxxxxxx C/F Xxxxx X. Woodmere Court Investments
Xxxxxx XXX Rollover DTD 2/17/95 Title: Account Advisor
Title: Account Advisor
/s/ Xxxxxx Xxxxxx /s/ Xxx Xxxxxxx
------------------------- -------------------------
Xxxxxx Xxxxxx Xxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxx /s/ J. Xxxxxx Xxxxxxx
------------------------- -------------------------
Xxxxxxx X. Xxxxx J. Xxxxxx Xxxxxxx
/s/ Xxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------- -------------------------
NMB Investment Group Xxxxxx X. Xxxxxx
Title: Partner
/s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxx
------------------------- -------------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx /s/ J. Xxxxxxx Xxxxxxx
------------------------- -------------------------
The Nassau Group, Inc. The Nassau Group, Inc.
SEP FBO Xxxxxx X. Xxxxxx SEP FBO J. Xxxxxxx Xxxxxxx
