EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of January 14, 1998 (the
"Agreement"), is by and between PARACELSIAN, INC., a Delaware corporation with
its principal offices in New York (the "Company"), and BIOMAR INTERNATIONAL,
INC., a Delaware corporation with its principal offices in North Carolina (the
"Investor").
WITNESSETH:
WHEREAS, pursuant to the terms of a Stock Purchase Agreement (the
"Purchase Agreement"), dated the date hereof, between the Company and the
Investor, the Investor is investing in newly issued shares of the common stock
of the Company;
WHEREAS, it is a condition to the obligations of the Investor under the
Purchase Agreement that this Agreement be executed by the parties hereto, and
the parties are willing to execute this Agreement and to be bound by the
provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth below, and the parties' desire to provide for continuity of ownership of
the Company to further the interests of the Company and its present and future
stockholders, the parties hereby agree with each other as follows:
1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean the common stock of the Company, as
constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" shall mean an Investor owning or having the right to
acquire Restricted Stock or any transferee of rights under this Agreement under
Section 13.
"Registration Expenses" shall mean all expenses incurred in
connection with a registration statement, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars, costs of
insurance, and fees and disbursements of one counsel for the sellers of
Restricted Stock, but excluding any Selling Expenses.
"Restricted Stock" shall mean the mean the "Shares," the
"Warrants" (both as defined in the Purchase Agreement) and the Common Stock to
be issued under the Warrants.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Restricted Stock which are
incurred in connection with a registration statement, plus any portion of
Registration Expenses required by law to be paid by the selling shareholder.
2. RESTRICTIVE LEGEND. Each certificate representing Restricted
Stock shall be stamped or otherwise imprinted with a legend substantially in the
following form:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THE CORPORATION WILL NOT TRANSFER THIS
CERTIFICATE UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION
COVERING THE SHARES REPRESENTED BY THIS CERTIFICATE UNDER THE
SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES
LAWS, (ii) IT FIRST RECEIVES A LETTER FROM AN ATTORNEY,
ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS AGENTS, STATING
THAT IN THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND
UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR (iii) THE
TRANSFER IS MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT
OF 1933.
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of
any Restricted Stock or other shares of capital stock of the Company (other than
under the circumstances described in Sections 4 or 5), the Holder thereof shall
give written notice to the Company of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by the Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company to the effect that the proposed transfer
may be effected without registration under the Securities Act, whereupon the
Holder of such stock shall be entitled to transfer such stock in accordance with
the terms of its notice; PROVIDED, HOWEVER, that no such opinion of counsel
shall be required for a transfer to one or more partners of the transferor (in
the case of a transferor that is a partnership) or to a parent corporation,
subsidiary corporation or to a corporation which is under common control with a
transferor (in the case of a transferor that is a corporation, to a member of
the transferor's immediate family or other descendant of the transferor or to a
trust or other entity for the benefit of the transfer and/or such person
provided that in such case the transferee(s) remain bound hereby).
4. REQUIRED REGISTRATION. (a) At any time within six months
following the date of this Agreement, one or more Holders of Restricted Stock
constituting at least sixty percent (60%) of the total shares of Restricted
Stock then outstanding may request the Company to register under the Securities
Act all or any portion of the shares of Restricted Stock held by such requesting
Holder or Holders ("Initiating Holders").
(b) Notwithstanding anything to the contrary contained in this
Section 4, no request may be made under this Section 4 within one hundred eighty
(180) days after the effective date of a registration statement filed by the
Company other than on Form S-4 or S-8 or their successor forms.
(c) If at the time of any request to register Restricted Stock
pursuant to this Section 4 (i) the Company is engaged or has fixed plans to
engage within sixty (60) days of the time of the request in a registered public
offering of its securities, (ii) the Company is in possession of material
non-public information the public disclosure of which, in the good faith
determination of the Company's Board of Directors, would materially and
adversely affect the Company, (iii) the Company shall have delivered to the
Holders of Restricted Stock that have requested a registration a certificate of
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an officer of the Company to the effect that, on the advice of counsel, the
Company believes such delay is necessary to comply with Regulation M under the
Exchange Act, or (iv) the Company is engaged in any other activity which, in the
good faith determination of the Company's Board of Directors, would be adversely
affected by the requested registration to the material detriment of the Company,
then the Company may at its option direct that such request be delayed for a
reasonable period not in excess of one hundred twenty (120) days from the time
of such request to register Restricted Stock pursuant to this Section 4;
PROVIDED, HOWEVER, that such right to delay a request may be exercised by the
Company not more than once in any twelve-month period. Such delay, however,
shall not in any way restrict the Holders from exercising piggyback registration
rights under Section 5 during such period.
(d) Following receipt of any notice under this Section 4, the
Company shall immediately notify all Holders of Restricted Stock from whom
notice has not been received, and such Holders shall be entitled within thirty
(30) days thereafter to request the Company to include in the requested
registration all or any portion of their shares of Restricted Stock. The Company
shall use its best efforts to register under the Securities Act, for public sale
in accordance with the method of disposition specified in the notice from
requesting Holders, the number of shares of Restricted Stock specified in such
notice (and in all notices received by the Company from other Holders within
thirty (30) days after the giving of such notice by the Company). If such method
of disposition shall be an underwritten public offering, the Holders of a
majority of the shares of Restricted Stock to be sold in such offering may
designate the managing underwriter of such offering, subject to the approval of
the Company, which approval shall not be unreasonably withheld or delayed.
Notwithstanding any other provision of this Section 4, if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Restricted Stock which would otherwise be
underwritten pursuant hereto, and the number of shares of Restricted Stock that
may be included in the underwriting shall be allocated among all Holders
thereof, including the Initiating Holders, in proportion (as nearly as
practicable) to the amount of Restricted Stock of the Company owned by each
Holder; PROVIDED, HOWEVER, that the number of shares of Restricted Stock to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting.
(e) The Company shall be obligated to register Restricted
Stock pursuant to this Section 4, on only one (1) occasion; PROVIDED, HOWEVER,
that such obligation shall be deemed satisfied only when a registration
statement covering all shares of Restricted Stock specified in notices received
as aforesaid, for sale in accordance with the method of disposition specified by
the requesting Holders shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto, unless a failure was caused by a Holder.
(f) Except for registration statements on Form X-0, X-0 or any
successor forms thereto, and unless the Company (i) has previously given the
notice referred to in Section 5 or (ii) has exercised its rights to delay a
requested registration under Section 4(c)(i) and within the time period
prescribed in Section 4(c) files a registration statement with respect to a
registered public offering of it securities, the Company will not file with the
Commission any other registration statement with respect to a registered public
offering of its securities, the Company will not file with the Commission any
other registration statement under the Securities Act with respect to Common
Stock, whether for its own account or that of other stockholders, from the date
of receipt of a notice from requesting Holders pursuant to this Section 4 until
the completion of the period of distribution of the registration contemplated
thereby.
5. PIGGYBACK REGISTRATION. (a) If the Company at any time (other
than pursuant to Section 4 or Section 13) proposes to register any of its
securities under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 or any successor forms
thereto), each such time it will give written notice to all Holders of
outstanding Restricted Stock of its intention so to do; PROVIDED HOWEVER that no
such notice shall be required after such time that the Company ceases to have
registration obligations under this Section 5. Upon the written request of any
such Holder, received by the Company within ten (10) days after the giving of
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any such notice by the Company, to register any of its Restricted Stock (which
request shall state the intended method of disposition thereof), the Company
will use its best efforts to cause the Restricted Stock as to which registration
shall have been so requested to be included in the securities to be covered by
the registration statement proposed to be filed by the Company, all to the
extent required to permit the sale or other disposition by the Holder (in
accordance with its written request) of such Restricted Stock so registered.
(b) If any registration pursuant to this Section 5 shall be,
in whole or in part, an underwritten public offering of Common Stock, the number
of shares of Restricted Stock to be included in such an underwriting may be
reduced pro rata among the requesting Holders based upon the number of shares of
Restricted Stock owned by such Holders if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein; PROVIDED,
HOWEVER, that: (1) if the Company registers any of its securities for its own
account in such underwriting, such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company or requesting Holders of Restricted
Stock or (2) if the Company does not register any of its securities for its own
account in such underwriting, the number of shares of Restricted Stock to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting unless the Holders of more
than 60% of the Restricted Securities consent to the inclusion of such other
securities.
(c) Notwithstanding the foregoing provisions of this Section
5, the Company may withdraw any registration statement referred to in this
Section 5 without thereby incurring any liability to the Holders of Restricted
Stock.
6. OBLIGATIONS OF THE COMPANY. If and whenever the Company is
required by the provisions of Section 4 or 5 to use its best efforts to effect
the registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 4, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until completion of the period of distribution and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
person reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter reasonably shall
request; PROVIDED, HOWEVER, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered
by such registration statement with any securities exchange on which the Common
Stock of the Company is then listed;
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(f) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained 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 light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any
seller of Restricted Stock, use its best efforts to furnish on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to such
seller, stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five (5) business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request; and
(h) make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause 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, subject to each party's obligations not to disclose or
misuse any confidential information disclosed to it.
For purposes of Sections 4(f), 6(a) and 6(b), the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby and
sixty (60) days after the effective date thereof.
7. OBLIGATIONS OF SELLING STOCKHOLDERS. In connection with each
registration hereunder, the sellers of Restricted Stock will furnish to the
Company in writing such information with respect to themselves and the proposed
distribution by them as reasonably shall be necessary to assure compliance with
federal and applicable state securities laws.
8. CERTAIN UNDERWRITING MATTERS. In connection with each
registration pursuant hereto covering an underwritten public offering, the
Company and each seller agree to enter into a written agreement with the
managing underwriter selected in the manner herein provided in such form and
containing such provisions as are customary in the securities business for such
an arrangement between such underwriter and companies of the Company's size and
investment stature.
9. EXPENSES. The Company will pay all Registration Expenses in
connection with each registration statement hereunder.
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10. INDEMNIFICATION AND CONTRIBUTION. (a) In the event of a
registration of any of the Restricted Stock under the Securities Act pursuant
hereto, the Company will and hereby does indemnify and hold harmless each seller
of such Restricted Stock thereunder, each underwriter of such Restricted Stock
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant hereto, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, 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 not misleading,
and will reimburse each such seller, each such underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, PROVIDED, HOWEVER, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus.
(b) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant hereto, each seller of such Restricted
Stock thereunder severally and not jointly, 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, each director of the Company, each other seller of Restricted Stock,
each underwriter and each person who controls any underwriter within the meaning
of the Securities Act, against all losses, claims, damages or liabilities, joint
or several, to which the Company or such officer, director, other seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant hereto, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, 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 no misleading,
and will reimburse the Company and each such officer, director, other seller,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action, PROVIDED, HOWEVER, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus, and PROVIDED FURTHER that the liability of
each seller hereunder shall not apply to amounts paid in settlement without such
seller's prior written consent.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 10 and shall only relive
it from any liability which it may have to such indemnified party under this
Section 10 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 10 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, PROVIDED,
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HOWEVER, 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 which 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.
(d) 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 of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 10 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 10 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 10; then, and in each such case, the Company and
such Holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that such Holder is responsible for the portion represented
by the percentage that the public offering price of its Restricted Stock offered
by the registration statement bears to the public offering price of all
securities offered by such registration statement, and the Company is
responsible for the remaining portion; PROVIDED, HOWEVER, that, in 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.
(e) 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.
(f) The obligations of the Company and Holders under this
Section 10 shall survive the completion of any offering of Restricted Stock in a
registration statement under Section 4, 5 or 13 of this Agreement, and
otherwise.
11. CHANGES IN COMMON STOCK OR PREFERRED STOCK. If, and as often
as, there is any change in the Common Stock of Common Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock as
so changed.
12. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the commission which may at any
time permit the sale of the Restricted Stock to the public without registration,
at all times after ninety (90) days after any registration statement covering a
public offering of securities of the Company under the Securities Act shall have
become effective, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and;
(c) furnish to each Holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any Restricted Stock without
registration.
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13. TRANSFERABILITY OF REGISTRATION RIGHTS. The rights conferred
herein on the Holders of Restricted Stock shall only inure to the benefit of a
transferee of Restricted Stock, (i) if the transfer was approved by the Board of
Directors of the Company (which approval shall not be unreasonably withheld) and
there is transferred to such transferee all of the Restricted Stock then held by
the transferor or (ii) if the transferee is a transferee permitted in the
provision to Section 3; PROVIDED HOWEVER that no transferee shall receive rights
pursuant to this Agreement unless it first agrees in writing to abide by all
restrictions on the Holders hereunder.
14. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Investor as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government, the certificate of incorporation or bylaws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement as been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
15. MISCELLANEOUS.
(a) BINDING EFFECT. All covenants and agreements contained in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
(including without limitation transferees of any Restricted Stock), whether so
expressed or not.
(b) NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be sent by nationally
recognized overnight courier which obtains a signed receipt upon delivery,
mailed by certified or registered mail, return receipt requested, postage
prepaid, or telexed, in the case of non-U.S. residents, addressed as follows:
(i) if to the Company or any other party hereto, at the address of such party
set forth in the Purchase Agreement; or (ii) if to any subsequent Holder of
Common Stock, to it at such address or addresses as shall have furnished in
writing to the Company (in the case of a Holder of Restricted Stock) or to the
Holders of Restricted Stock (in the case of the Company) in accordance with the
provisions of this paragraph.
(c) NO WAIVER: Cumulative Remedies. No failure or delay on the
part of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(d) AMENDMENTS, WAIVERS AND CONSENTS. This Agreement may not
be amended or modified, and no provision hereof may be waived, without the
written consent of the Company and the Holders of at least sixty percent (60%)
of the outstanding shares of Restricted Stock.
(e) TERMINATION. The obligations of the Company to register
shares of Restricted Stock under Sections 4 and 5 shall terminate with respect
to any Holder at such time as Rule 144 or another similar exemption under the
Securities Act is available for the sale of all such Holder's shares during a
three (3) month period without registration.
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(f) SEVERABILITY. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina, without
giving effect to the principles of the conflicts of laws thereof.
(h) INJUNCTIVE RELIEF. The Company recognizes that the rights
of the Investor under this Agreement are unique and, accordingly, the Investor
shall, in addition to such other remedies as may be available to them at law or
in equity, have the right to enforce their rights hereunder by actions for
injunctive relief and specific performance to the extent permitted by law. This
Agreement is not intended to limit or abridge any rights of the Investor which
may exist apart from this Agreement.
(i) MERGER PROVISION. This Agreement, along with the Purchase
Agreement of even date herewith, including all exhibits and schedules thereto,
constitute the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersede all prior and contemporaneous agreements and
understandings, of any of the parties hereto concerning the subject matter
hereof.
(j) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
BIOMAR INTERNATIONAL, INC.
By: /s/ T. Xxxxxx Xxxxxxxx
---------------------------------------------
T. Xxxxxx Xxxxxxxx
Chairman of the Board
PARACELSIAN, INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Xx. Xxxxxx Xxxxxxxxx
President and Chief Executive Officer
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