EXHIBIT 1
VITAL LIVING REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), dated as of August 20,
2003, is between SkyePharma PLC, a company incorporated under the laws of
England and Wales (the "Holder") and Vital Living, Inc., a Nevada corporation
(the "Corporation").
WHEREAS, the Holder will acquire 14,204,548 shares of the Corporation's
common stock, par value $0.001 (the "Shares") pursuant to the terms of that
certain Merger Agreement (the "Merger Agreement" and the Shares issued thereby,
the "Merger Shares"), dated August 20, 2003, by and between the Corporation,
VLEN Acquisition Corp., Inc., a wholly owned subsidiary of the Corporation, and
e-nutriceuticals, inc., a Delaware corporation.
WHEREAS the Holder will acquire additional Shares (together with the
Merger Shares, the "Subject Shares") upon conversion of shares of preferred
stock of the Corporation to be issued to the Holder pursuant to a Subscription
Agreement, dated August 20, 2003 by and between the Holder and the Corporation
(the "Subscription Agreement");
NOW THEREFORE, in consideration of mutual covenants, obligations and
agreements contained herein, in the Merger Agreement and in the Subscription
Agreement, and intending to be legally bound hereby, the parties hereto agree as
follows:
Section 1. Definitions. Except as otherwise specified herein, defined terms used
in this Agreement shall have the respective meanings assigned to such terms in
the Merger Agreement. Unless otherwise specified all references to "days" shall
be deemed to be references to calendar days. For purposes of this Agreement the
following terms shall have the following meanings:
(a) "Affiliate" shall mean, with respect to any Person, any other
Person who, directly or indirectly through one or more intermediaries, controls,
is controlled by or is under common control with such Person. For purposes of
this definition, "control" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by appointment of directors,
by contract or otherwise.
(b) "Business Day" shall mean any day other than a business day on
which banking institutions in New York are authorized or obligated by law to
close for business.
(c) "Commission" shall mean the U.S. Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
(d) "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended, or any successor Federa1 statute, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in effect from
time to time.
(e) "Closing Date" shall have the meaning set forth in the Merger
Agreement.
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(f) "Merger Shares" shall have the meaning set forth in the Recitals.
(g) "Merger Agreement" shall have the meaning set forth in the
Recitals.
(h) "Person" or "persons" mean any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or other agency or
political subdivision thereof
(i) "Registrable Shares" shall mean the Shares held by Holder that
constitute Restricted Shares.
(j) "Restricted Shares" shall mean (i) the Subject Shares issued to the
Holder pursuant to the Purchase Agreement, and (ii) any securities received in
respect of the Subject Shares, that (x) are held by the Holder and (y)
theretofore have not been sold to the public pursuant to a registration
statement under the Securities Act or pursuant to Rule 144 or that may not be
freely sold by the Holder without registration under Rule 144(k).
(k) "Rule 144" shall mean Rule 144 promulgated under the Securities Act
or successor or complementary rule thereto.
(l) "Securities Act" shall mean the Securities Act of 1933, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
(m) "Shares" shall mean shares of Common Stock, par value $ 0.001 per
share, of the Corporation.
(n) "Transfer" shall mean any disposition of any Restricted Shares or
of any interest therein that would constitute a sale thereof within the meaning
of the Securities Act other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
Section 2. Representations and Warranties of the Corporation.
(a) Representations and Warranties of the Corporation. The Corporation
represents and warrants to the Holder as follows:
(i) The execution, delivery and performance by the Corporation of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all requisite corporate action on the part of the
Corporation and the Agreement shall have been duly executed and delivered by the
Corporation and is in full force and effect. The Agreement constitutes the valid
and binding obligations of the Corporation, enforceable in accordance with its
terms, subject as to enforcement to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and general
principles of equity.
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(ii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, and compliance with
the provisions hereof by the Corporation will not (a) violate any law or statute
or order, judgment or decree of any court, administrative agency or other
governmental body applicable to the Corporation, or its properties or assets,
(b) conflict in any respect with or result in any breach of any of the terms or
provisions or constitute (without due notice or lapse of time, or both) a
default under the Certificate of Incorporation or By-laws of the Corporation,
(c) result in a breach or violation of, or a default under, or acceleration of
any obligations pursuant to any note, indenture, mortgage, lease, agreement,
contract, understanding, arrangement or instrument ("Contracts") to which the
Corporation is a party or by which it or any of its properties or assets may be
bound or affected, (d) result in any change in the rights or obligations of any
party under the Contracts, or (e) result in the creation or imposition of any
lien, claim, judgment, charge, mortgage, security interest, pledge, escrow
equity or other encumbrance of any nature whatsoever upon any of the properties
or assets of the Corporation.
(b) Representations and Warranties of the Holder. The Holder represents
and warrants to the Corporation that it has all requisite power and authority to
execute this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of the Holder. This
Agreement has been duly executed and delivered by the Holder and this Agreement
constitutes the legal, valid, binding and enforceable obligation of the Holder,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to, creditors' rights and general principles of equity.
Section 3. Piggyback Registration. Subject to the terms and conditions set forth
in this Agreement, if the Corporation at any time after March 31, 2004, proposes
for any reason to register Shares under the Securities Act (other than on Form
S-4 or Form S-8 promulgated under the Securities Act or any successor forms
thereto, or any post-effective amendment relative to a registration statement
previously filed), it shall as promptly as practicable (but in no event less
than thirty (30) days prior to the date the registration statement is filed with
the Commission) give written notice to the Holder of its intention to effect
such registration. If within twenty (20) days of delivery of such notice the
Holder submits a written request to the Corporation specifying the amount of
Registrable Shares held by the Holder and the intended method of disposition of
such Registrable Shares, the Corporation shall include in the registration
statement and offering, the Registrable Shares specified in the request on the
same terms and conditions as the Shares otherwise being sold in such
registration and use its best efforts to cause such registration statement to
become effective. If the managing underwriter determines in good faith and
advises the Holder in writing that the inclusion in the registration statement
and offering of all the Registrable Shares proposed to be included would
interfere with the successful marketing of all securities proposed to be
registered, then the Holder shall agree to a downward adjustment in the number
of Registrable Shares to be included in such underwriting sufficient to
alleviate such marketing concern (provided that if securities are being offered
for
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the account of Persons other than the Corporation, then such securities intended
to be offered for the account of such other Person shall be reduced first).
Section 4. Shelf and Demand Registration. As soon as reasonably practicable
after March 31, 2004, the Corporation shall prepare and file with the SEC a
registration statement (the "Shelf Registration Statement") under form S-3 (or
any successor form, if permitted) to permit offerings and sales of Registrable
Shares by the Holder pursuant to Rule 415 under the Securities Act and shall use
its reasonable best efforts to maintain such Shelf Registration Statement
effective and current. The Corporation shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement,
if required by the Securities Act or if reasonably requested by the Holder. In
the event that the Corporation has failed to or is unable to file and maintain a
Registration Statement as contemplated by this Section 4 and until such failure
or inability is remedied, the Holder shall have the right to make at any time a
written demand upon the Corporation (each, a "Demand Notice") to have the
Corporation as promptly as practical register under the Securities Act for offer
and sale all Registrable Shares specified to the Corporation by the Holder
within 20 days of the date of the Demand Notice and the Corporation agrees to so
register such Registrable Shares. Notwithstanding the foregoing, if the
Corporation shall furnish a certificate to the Holder signed by the Chief
Executive Officer of the Corporation (a "Blackout Notice"), the Corporation may
suspend the use, or delay the delivery or filing (but not the preparation) of
the Registration Statement or any amendment or supplements thereto, for a
limited period of time (which in no event shall be longer than forty-five (45)
days after the date of the Blackout Notice ("Suspension Right"), if the
Corporation determines in good faith that (i) it is in possession of material,
non-public information concerning an acquisition, merger, recapitalization,
consolidation, reorganization or other material transaction by or of the
Corporation or concerning pending or threatened litigation and disclosure of
such information would jeopardize any such transaction or litigation or
otherwise materially harm the Corporation, or (ii) in the case of a Demand
Notice, the filing of the registration statement would occur after February 15
of any year but before the filing by the Corporation of its annual report on
Form 10-K; and, in either case, (iii) the Corporation shall have so stated in
the Blackout Notice; provided, however, that the Corporation may not exercise
such Suspension Right more than twice in any twelve month period.
Section 5. Registration Mechanics. In connection with any registration of the
Registrable Shares effected pursuant to Sections 3 or 4 the Corporation shall:
(a) prepare and file the registration statement and such amendments and
supplements to the registration statement and the prospectus or offering
circular used in connection therewith as may be necessary to keep the
registration statement current and effective and to comply with the provisions
of the Securities Act and the rules and regulations thereunder with respect to
the disposition of all the Registrable Shares covered by the registration
statement for the period required to effect the distribution thereof, and to use
its best efforts to make any corrections or updates to the registration
statement or prospectus as promptly as practicable;
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(b) furnish to the Holder such number of copies of any prospectus,
prospectus supplement or offering circu1ar, including a preliminary prospectus,
and of a full registration statement and exhibits in conformity with the
requirements of the Securities Act and the rules and regulations thereunder, as
the Holder may reasonab1y request in order to facilitate the disposition of such
securities;
(c) use its best efforts to register or qualify the Registrable Shares
covered by the registration statement under the securities or "blue sky" laws of
such state jurisdictions of the United States as the Holder may reasonably
request, and to accomplish any and all other acts and things which may be
necessary or advisable to permit sales in such jurisdictions of such Registrable
Shares and keep such registration or qualification in effect for so long as the
registration statement remains in effect;
(d) in connection with an underwritten public offering, to enter into
an underwriting agreement in form and substance customary under the
circumstances, which shall include (i) provisions for any "lock up" period,
during which the sale of Shares and securities convertible into Shares by the
Corporation or its Affiliates will be restricted, that may reasonably be
required by the managing underwriter thereof and (ii) indemnification and
contribution provisions and procedures that are no less favorable to the
underwriters than those set forth in Section l0 hereof and otherwise reasonably
satisfactory to the managing underwriter;
(e) in connection with any underwritten public offering, obtain
opinions of counsel to the Corporation (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriter) addressed to the Holder and the underwriters, covering such matters
as are customarily covered in opinions requested in underwritten offerings of
equity and convertible debt securities and such other matters as may be
reasonably requested by the Holder and the underwriters (it being agreed that
the matters to be covered by such opinions shall include, without limitation,
the absence from the registration statement and the prospectus, including the
documents incorporated by reference therein and any prospectus supplement
thereto, of an untrue statement of a material fact or the omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading);
(f) at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, notify the Holder upon discovery that, or
upon the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material facts required to be stated
therein or necessary to make the statements therein not mis1eading, in the light
of the circumstances under which they were made, and (subject to the good faith
determination of the Board of Directors as to whether to cease all sales under
such registration statement) unless such untrue statement or omission has been
made upon and in conformity with information furnished in writing to the
Corporation by the Holder or any underwriter or any person who controls any of
them within the meaning of Section 15 of the Securities Act or any director or
officer of any of the foregoing, as the case may be, specifically for use in
connection with the preparation of the registration statement, at the request of
the Holder prepare and furnish to it a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary
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so that, as thereafter delivered to the Holders of such securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the circumstances under which
they were made;
(g) in connection with any underwritten public offering, obtain "cold
comfort" letters and updates thereof from the independent public accountants of
the Corporation (and, if necessary, from the independent public accountants of
any subsidiary of the Corporation or of any business acquired by the Corporation
for which financial statements and financial data are, or are required to be,
included in the relevant registration statement), addressed to the Holder (if
the Holder has provided such letter, representations or documentation, if any,
required for such "cold comfort" letter to be so addressed) and the
underwriters, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings;
(h) use its best efforts to cause the Registrable Shares to be listed
on or included for quotation on any stock exchange or trading system on which
the Shares then primarily trade;
(i) provide a CUSIP number for all Registrable Securities, not later
than the effective date of such registration statement;
(j) if requested by any managing underwriter or underwriters of
Registrable Shares, participate and use its best efforts to cause its executive
officers to participate in any "roadshow" or other marketing activities intended
to aid in the successful disposition of the Registrable Shares; and
(k) upon the request of the Holder take reasonable efforts to make
available for inspection by the Holder and the underwriters, if any, and their
respective advisers all financial and other records, pertinent corporate
documents of the Corporation and cause the Corporation's officers, directors and
employees to take reasonable efforts to supply all information reasonably
requested by the Holder, the underwriters, if any, or any such adviser in
connection with such registration (as long as such registration shall not have
been postponed, delayed or withdrawn, or the effectiveness thereof terminated).
Section 6. Information Provided by the Holder. Whenever under this Agreement
Registrable Shares are being registered, the Holder shall provide the
Corporation on a timely basis with such information and materials as the
Corporation may reasonably request in order to effect the registration of the
Registrable Shares.
Section 7. Rule 144. With a view to making available to the Holder the benefits
of Rule 144, the Corporation agrees to use its best efforts to make available
adequate current public information with respect to it within the meaning of,
and as required pursuant to, Rule 144(c).
Section 8. Selection of Underwriters. If the offering pursuant to any piggy back
registration pursuant to Section 3 hereof is to be made by or through
underwriters, the Corporation shall
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have the right to designate the managing underwriter which shall be reasonably
satisfactory to the Holder. If the offering pursuant to any registration of
Registrable Shares pursuant to a demand by the Holder under Section 4 hereof is
to be made by or through underwriters, the Holder shall have the right to
designate the managing underwriter which shall be reasonably satisfactory to the
Corporation.
Section 9. Expenses. All expenses incurred by the Corporation in effecting a
registration and sale of Registrable Shares under this Agreement, including,
without limitation, all registration and filing fees (including all expenses
incidental to filing with the NASD), fees and expenses of complying with
securities and "blue sky" laws, printing expenses, expenses incurred by the
Corporation in marketing and assisting in the marketing of such Registrable
Shares, the fees, disbursements and expenses of the managing underwriter or
underwriters, the fees and expenses of counsel and independent auditors for the
Corporation including fees of counsel and accountants incurred in connection
with the preparation of customary opinions of counsel and independent auditors,
and the reasonable fees and expenses of one counsel for the Holder, shall be
borne by the Corporation, provided, however, that any underwriting commissions
or concessions incurred in effecting a registration and sale of the Holder's
Registrable Shares shall not be borne by the Corporation.
Section 10. Indemnification.
(a) In connection with any registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, the Corporation shall indemnify
and hold harmless the Holder, and the officers, directors and other Persons, if
any, that may be deemed to control the Holder within the meaning of the Exchange
Act, and each underwriter, broker, dealer or other Person active on behalf of
the Holder, against any losses, claims, damages or liabilities, joint or several
(or actions in respect thereof), to which the Holder and such Persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the registration statement (including the documents incorporated
therein by reference) under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus, final prospectus or prospectus
supplement contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, or (ii) 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 not misleading or,
with respect to any prospectus or prospectus supplement, necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or (iii) arise out of any violation by the Corporation of the
Securities Act or state securities or "blue sky" laws applicable to the
Corporation and relating to action or inaction required of the Corporation in
connection with such registration or qualification under state securities or
"blue sky" laws; provided, however, that the Corporation sha1l not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue, statement or al1eged untrue
statement or omission or alleged omission made in said registration statement,
preliminary prospectus, final prospectus, prospectus supplement, amendment,
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supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon written information furnished to the
Corporation by the Holder with respect to information regarding the Holder
expressly for inclusion therein.
(b) In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, the Holder shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
l0(a)) the Corporation, each director of the Corporation, each officer of the
Corporation who shall sign such registration statement, each underwriter,
broker, dealer or other Person acting on behalf of the Corporation and each
Person, if any, who controls any of the foregoing Persons within the meaning of
the Securities Act with respect to any statement or omission from such
registration statement, any preliminary prospectus, final prospectus or
prospectus supplement contained therein or otherwise filed with the Commission,
any amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, if such statement or omission was made
in reliance upon written information furnished by the Holder to the Corporation
or such underwriter expressly for inclusion in such registration statement,
preliminary prospectus, final prospectus, prospectus supplement, amendment,
supplement or document, provided that the liability of the Holder under this
Section 10(b) shall not exceed the aggregate proceeds received by the Holder
upon the sale of Registrable Shares by such investor pursuant to such
registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 10, such indemnified party will, if a claim in
respect thereof is made against an indemnifying party, give written notice to
the latter of the commencement of such action. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its ejection so to assume
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the reasonable fees
and expenses to be paid by the indemnifying party, if such indemnified party
shall have been advised in writing by counsel that representation of such
indemnified party or parties by the counse1 retained by the indemnifying party
or parties would be inappropriate due to actual or potential differing interests
between such indemnified party or parties and any other party represented by
such counsel in such proceeding.
(d) If the indemnification provided for in this Section 10 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in
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such loss, claim, damage, liability or action as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Section 11. Listing; Market for Shares; Legend. The Corporation shall use its
best efforts to ensure that the Holder has a readily realisable market for its
outstanding shares of Common Stock from January 1, 2004 (the "Liquidity
Covenant"). The Liquidity Covenant includes, without limitation, that (i) the
Corporation shall use its reasonable best efforts to obtain a listing on the
American Stock Exchange or a quotation on NASDAQ for its common stock prior to
December 31, 2003, and (ii) in the event the Corporation fails to obtain such a
listing or quotation, the Corporation shall use its best efforts to procure
purchasers of Shares held by the Holder, on terms and conditions satisfactory to
the Holder. Notwithstanding any other agreement between the Corporation and the
Holder, the Corporation shall at the request of the Holder promptly remove any
legends on the Registrable Shares at any time on or after March 31, 2004.
Section 12. Termination.
(a) This Agreement shall terminate and be of no further force or effect
when there shall not be any Restricted Shares, provided that the rights of the
Holder and obligations of the Corporation under Sections 3 and 4 hereof shall
earlier terminate and be of no further force or effect with respect to the
Holder, and the Corporation vis-a-vis the Holder at such earlier time as it or
its assigns no longer holds any Restricted Shares.
(b) Notwithstanding anything to the contrary contained herein, Section
9 of this Agreement shall survive any termination hereof and shall remain in
full force and effect.
Section 13. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the Corporation and the Holder and the respective successors,
assigns, heirs and legal representatives (as the case may be) of the Corporation
and the Holder.
Section 14. No Inconsistent Rights; Other Agreements. (a) The Corporation shall
not grant, and has not granted, any other Person rights to register securities
of the Corporation on terms that would reasonably be likely to restrict the
ability of the Corporation fully to perform its obligations to the Holder
pursuant to this Agreement.
(b) The Corporation shall not amend any registration rights agreement
with any other Person nor shall the Corporation waive any provision under any
registration rights agreement
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that it would be entitled to waive thereunder if such waiver would reasonably be
likely to adversely affect the Holder's rights under this Agreement.
Section 15 Assignment. The rights granted pursuant to this Agreement may not be
assigned or otherwise conveyed by the Holder or by any subsequent assign of any
of such rights without the written consent of the Corporation, which consent
sha1l not unreasonably be withheld; provided, however, that no such written
consent shall be required if the transfer is to any Affiliate or partner of the
Holder or if such assign acquires at least a majority of the capital stock of
the Corporation owned by the Holder. The rights granted pursuant to this
Agreement with respect to the Restricted Shares shall be deemed to be assigned
subject to the provisions of this Section 14 (with respect to such Restricted
Shares) to any assign of such Restricted Shares, unless the documentation
executed by the Holder to effect the transfer of such Restricted Shares provides
that rights under this Agreement are not being assigned to such assign. The
Holder shall be deemed to include any party to whom the Holders rights with
respect to particular Restricted Shares have been assigned in accordance with
this Section 15.
Section 16. Entire Agreement. This Agreement, which shall be effective as of the
date hereof, contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous arrangements
or understandings with respect thereto.
Section 17. Severability. Whenever possible, each provision or portion of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law, rule or regulation in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or a portion of any provision shall have been replaced
with a provision or a portion of any provision, which shall, to the maximum
extent permissible under such applicable law, rule or regulation, give effect to
the intention of the parties as expressed in such invalid, illegal or
unenforceable provision.
Section 18. Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if delivered
personally, by telecopier, sent by nationally-recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses:
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(a) if to the Corporation, to:
VITAL LIVING, INC.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xx. Xxxx Xxxxx
Telephone 000-000-0000
Facsimile: 000-000-0000
with a copy to: Xxxxx Xxxxxx & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx Esq.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(b) if to the Holder, to: SkyePharma PLC
000 Xxxxxxxxxx
Xxxxxx, Xxxxxxx XXX 0XX
Attn: Company Secretary
Telephone No.: x00 00 0000 0000
Facsimile No.: x00 00 0000 0000
with a copy to: Xxxxxxxx & Xxxxxxxx XXX
0 Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: x00 00 0000 0000
Facsimile No.: x00 00 00000000
or to such other address as the party to whom notice is xxxx given may have
furnished to the other parties hereto in writing in accordance herewith. Any
such notice or communication shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by telecopier, on the date of
such delivery, (ii) in the case of a nationally-recognized overnight courier, on
the next business day after the date when sent and (iii) in the case of mailing,
on the third business day following that on which the piece of mail containing
such communication is posted.
Section 19. Modifications; Amendments; Waiver. The terms and provisions of this
Agreement may only be amended or waived either (i) with the written consent of
the Corporation and the Holder or (ii) in writing by the party against whom such
amendment or waiver is sought to be enforced. The failure of a party to insist
upon strict adherence to any term of this Agreement on
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one or more occasions shall not be considered a waiver of or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
Section 20. Counterparts. This Agreement may be executed in any number of
separate counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute one
agreement.
Section 21. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
Section 22. Governing Law; Submission to Jurisdiction; Selection of Forum. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflict of law provisions thereof. Each party hereto
agrees that it shall bring up any action or proceeding in respect of any claim
arising out of or related to this agreement or the transactions contained in and
contemplated by this Agreement, whether in tort or contract or at law or in
equity, exclusively in the United States District Court for the Southern
District of New York or, if such court is not available, the Supreme Court of
the State of New York (the "Chosen Courts") and solely in connection with claims
arising under this Agreement or the transactions contained in or contemplated by
this Agreement (i) irrevocably submits to the exclusive jurisdiction of the
Chosen Courts, (ii) waives any objection to laying venue in any such action or
proceeding in the Chosen Courts and agrees not to commence any action in respect
of any such claim in any other court or forum, (iii) waives any objection that
the Chosen Courts are an inconvenient forum or do not have jurisdiction over any
party hereto, (iv) waives any right to a trial by jury and (v) agrees that
service of process upon such party in any such action or proceeding shall be
effective if notice is given in accordance with Section 18 of this Agreement.
Without limiting the foregoing, each of the Corporation and the Holder hereby
appoints, in the case of any such action or proceeding brought in the courts of
or in the State of New York, CT Corporation System with offices on the date
hereof at 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, X.X. 00000 to receive, for it
and on its behalf, service of process in the State of New York with respect
thereto, provided the Corporation and the Holder may appoint any other person,
reasonably acceptable to the other party, with offices in the State of New York
to replace such agent for service of process upon delivery to the other party of
a reasonably acceptable agreement of such new agent agreeing to act.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the date first written above.
Vital Living, Inc.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Its: Chief Executive Officer
-----------------------------
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Its: President
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SkyePharma PLC
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Its: Finance Director
-----------------------------
13
