Exhibit 3
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is entered into as of
October 16, 1997 by and between NutraMax Products, Inc., a Delaware corporation
(the "Company"), and Xxxxxxx X. Xxxxxx (the "Holder").
WHEREAS, the Holder has agreed to purchase shares (the "Shares") of the
Company's common stock, par value $.001 per share (the "Common Stock"), to be
issued without registration under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to an Agreement dated as of October 14, 1997 by and
between the Company and the Holder.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. "Piggyback" Registration.
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If, at any time while the Holder shall hold Shares, the Company proposes to
file a registration statement relating to the offering of any of its capital
stock under the Securities Act (other than (i) a registration statement required
to be filed in respect of employee benefit plans of the Company on Form S-8 or
any similar form from time to time in effect, (ii) any registration statement on
Form S-4 or similar successor form, or (iii) a registration statement relating
to a transaction pursuant to Rule 145 of the Securities Act), whether or not for
sale for its own account, the Company shall, at least twenty-one days (or if
such twenty-one day period is not practicable, then a reasonable shorter period
which shall not be less than seven days) prior to such filing, give written
notice of such proposed filing to the Holder. Upon receipt by the Company not
more than seven days (unless the notice given to the Holder pursuant to the
previous sentence is less than ten days, in which case such seven-day period
shall be shortened to five days) after such notice of a written request from the
Holder for registration of any or all of the Registrable Shares (as hereinafter
defined), the Company shall, subject to Section 2, include such Registrable
Shares requested to be registered in such registration statement, and shall use
all reasonable efforts to cause such registration statement to become effective
with respect to such Registrable Shares, unless the managing underwriter
therefor concludes in its reasonable judgment that the number of securities
requested to be included in such registration exceeds the number which can
reasonably be sold in (or during the time of) such offering, in which case the
Company may decrease the number of shares of Registrable Shares included in such
registration and any other securities proposed to be sold to the extent
necessary to reduce the number of securities to be included in the registration
to the level recommended by the managing underwriter; provided, however, that in
the event of any such reduction, the first shares to be included in such
registration shall be any shares to be registered for the benefit of the
Company, thereafter any shares requested to be registered for the benefit of
holders of Common Stock pursuant to registration rights agreements in effect
between the Company and such holders prior to the date hereof, and thereafter
any Registrable Shares requested to be registered by the Holder hereunder.
Registrable Shares means any Shares and any securities of the Company issued as
a dividend or distribution with respect to or in exchange for any Shares.
2. Registration Procedures.
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(a) The Company shall notify the Holder of the effectiveness of the
Registration Statement and shall furnish to the Holder such number of copies of
the Registration Statement (including any amendments, supplements and exhibits),
the prospectus contained therein (including each preliminary prospectus), any
documents incorporated by reference in the Registration Statement and such other
documents as the Holder may reasonably request in order to facilitate his sale
of the Registrable Shares in the manner described in the Registration Statement.
(b) Subject to the provisions of Section 7, the Company shall prepare and
file with the Securities and Exchange Commission (the "SEC") from time to time
such amendments and supplements to the Registration Statement and prospectus
used in connection therewith as may be necessary to keep the Registration
Statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of all the Registrable Shares until the earlier of
(i) such time as all of the Registrable Shares have been issued or disposed of
in accordance with the intended methods of disposition by the Holder as set
forth in the Registration Statement or (ii) 180 days from the effectiveness of
the Registration Statement. The Company shall file any necessary listing
applications or amendments to the existing applications to cause the shares to
be then listed or quoted on the primary exchange or quotation system on which
the Common Stock is then listed or quoted.
(c) Upon making a request for registration pursuant to Section 1, the
Holder shall furnish to the Company such information regarding his holdings and
the proposed manner of distribution thereof as the Company may reasonably
request and as shall be required in connection with any registration,
qualification or compliance referred to herein.
3. State Securities Laws. Subject to the conditions set forth in this
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Agreement, the Company shall, promptly upon the filing of a Registration
Statement including Registrable Shares, file such documents as may be necessary
to register or qualify the Registrable Shares under the securities or "Blue Sky"
laws of such states as the Holder may reasonably request, and the Company shall
use reasonable efforts to cause such filings to become qualified; provided,
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however, that the Company shall not be obligated to qualify as a foreign
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corporation to do business under the laws of any such state in which it is not
then qualified or to file any general consent to service of process in any such
state.
4. Expenses. The Company shall bear all expenses incurred in connection
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with the registration of the Registrable Shares pursuant to Section 1 of this
Agreement. Such expenses shall include, without limitation, all printing, legal
and accounting expenses incurred by the Company and all registration and filing
fees imposed by the SEC, any state securities commission or the National
Association of Securities Dealers, Inc. or, if the Common Stock is not then
listed on the Nasdaq SmallCap Market, the principal national securities exchange
or national market system on which the Common Stock is then traded or quoted.
Notwithstanding the foregoing, the Holder shall be responsible for any brokerage
or underwriting commissions and taxes of any kind (including, without
limitation, transfer taxes)
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with respect to any disposition, sale or transfer of Registrable Shares and for
any legal, accounting and other expenses incurred by the Holder.
5. Indemnification by the Company. The Company agrees to indemnify the
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Holder and each person or entity, if any, subject to liability because of his,
her or its connection with the Holder, and any underwriter and any person who
controls the underwriter within the meaning of the Securities Act (an
"Indemnitee") against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including without limitation reasonable attorneys' fees,
expenses and disbursements documented in writing), joint or several, arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any prospectus contained therein, or
any 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 under which they were made, not misleading, except insofar as and
to the extent that such statement or omission arose out of or was based upon
information regarding the Indemnitee or its plan of distribution which was
furnished to the Company by the Indemnitee for use therein, provided, further
that the Company shall not be liable to any person who participates as an
underwriter in the offering or sale of Registrable Shares or any other person,
if any, who controls such underwriter within the meaning of the Securities Act,
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon (i) an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with information furnished to the Company for use in
connection with the Registration Statement or the prospectus contained therein
by such Indemnitee or (ii) such Indemnitee's failure to send or give a copy of
the final prospectus furnished to it by the Company at or prior to the time such
action is required by the Securities Act to the person claiming an untrue
statement or alleged untrue statement or omission or alleged omission if such
statement or omission was corrected in such final prospectus. The obligations
of the Company under this Section 5 shall survive the completion of any offering
of Registrable Shares pursuant to a Registration Statement under this Agreement
or otherwise and shall survive the termination of this Agreement.
6. Covenant of the Holder. The Holder hereby agrees (a) to cooperate
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with the Company and to furnish to the Company all such information in
connection with the preparation of the Registration Statement and any filings
with any state securities commissions as the Company may reasonably request, (b)
to deliver or cause delivery of the prospectus contained in the Registration
Statement to any purchaser of the Shares covered by the Registration Statement
from the Holder, (c) to notify the Company of any sale of Registrable Shares by
the Holder and (d) to indemnify the Company, its officers, directors, employees,
agents, representatives and affiliates, and each person, if any, who controls
the Company within the meaning of the Securities Act, and each other person, if
any, subject to liability because of his connection with the Company, against
any and all losses, claims, damages, actions, liabilities, costs and expenses
arising out of or based upon (i) any untrue statement or alleged untrue
statement of material fact contained in either the Registration Statement or the
prospectus contained therein, or any omission or alleged omission to state
therein a material
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fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, if and
to the extent that such statement or omission arose out of or was based upon
information regarding the Holder or its plan of distribution which was furnished
to the Company by the Holder for use therein, or (ii) the failure by the Holder
to deliver or cause to be delivered the prospectus contained in the Registration
Statement (as amended or supplemented, if applicable) furnished by the Company
to the Holder to any purchaser of the shares covered by the Registration
Statement from the Holder. Notwithstanding the foregoing, (i) in no event will
the Holder have any obligation under this Section 6 for amounts the Company pays
in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld) and (ii) the total amount for which the Holder
shall be liable under this Section 6 shall not in any event exceed the aggregate
gross proceeds received by him or it from the sale of the Holder's Registrable
Shares in such registration. The obligations of the Holder under this Section 6
shall survive the completion of any offering of Registrable Shares pursuant to a
Registration Statement under this Agreement or otherwise and shall survive the
termination of this Agreement.
7. Suspension of Registration Requirement.
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(a) The Company shall promptly notify the Holder of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company shall use reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at the
earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this Agreement,
the Company's obligation under this Agreement to use reasonable efforts to cause
the Registration Statement and any filings with any state securities commission
to be made or to become effective or to amend or supplement the Registration
Statement shall be suspended in the event and during such period pending
negotiations relating to, or consummation of, a transaction or the occurrence of
an event that would require additional disclosure of material information by the
Company in the Registration Statement or such filing (such circumstances being
hereinafter referred to as a "Suspension Event") that would make it impractical
or unadvisable to cause the Registration Statement or such filings to be made or
to become effective or to amend or supplement the Registration Statement, but
such suspension shall continue only for so long as such event or its effect is
continuing but in no event will that suspension exceed ninety (90) days.
Immediately upon receipt by the Holder of notice of a Suspension Event, the
Holder shall cease to offer or sell any Registrable Securities pursuant to such
Registration Statement, cease to deliver or use such Registration Statement and,
if so requested by the Company, return to the Company, at his expense, all
copies (other than permanent file copies) of such Registration Statement.
(c) The Holder agrees, if requested by the Company in the case of a
nonunderwritten offering (a "Nonunderwritten Offering") or if requested by the
managing underwriter or underwriters in an underwritten offering (an
"Underwritten Offering,"
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collectively with Nonunderwritten Offering, the "Offering"), not to effect any
public sale or distribution of any of the securities of the Company of any class
included in such Offering, including a sale pursuant to Rule 144 or Rule 144A
under the Securities Act (except as part of such Offering), during the 15-day
period prior to, and during the 90-day period (or such longer period as may be
required by the managing underwriter or underwriters) beginning on, the date of
pricing of each Offering, to the extent timely notified in writing by the
Company or the managing underwriters. Furthermore, notwithstanding anything to
the contrary set forth in this Agreement, the Company's obligation under this
Agreement to cause a Registration Statement and any filings with any state
securities commission to be made or to become effective or to amend or
supplement such Registration Statement shall be suspended in the event and
during such period as the Company is proceeding with an Offering if the Company
is advised by the underwriters that the sale of shares of Registrable Securities
under such Registration Statement would have a material adverse effect on the
Offering.
8. Black-Out Period. Following the effectiveness of the Registration
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Statement and the filings with any state securities commissions, the Holder
agrees that he will not effect any sales of the Registrable Shares pursuant to
the Registration Statement or any such filings at any time after he has received
notice from the Company to suspend sales as a result of the occurrence or
existence of any Suspension Event, during any Offering, or so that the Company
may correct or update the Registration Statement or such filing. The Holder may
recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement or such filings following further notice to such effect
from the Company, which notice shall be given by the Company not later than
three (3) business days after the conclusion of any such Suspension Event or
Offering.
9. Contribution. If the indemnification provided for in Sections 5 and 6
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is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
actions, 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, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the Company
or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
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party to contribute under this Section 9 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
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The Company and the Holder agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
No indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation.
10. No Other Obligation to Register. Except as otherwise expressly
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provided in this Agreement, the Company shall have no obligation to the Holder
to register the Registrable Shares under the Securities Act.
11. Amendments and Waivers. The provisions of this Agreement may not be
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amended, modified or supplemented without the prior written consent of the
Company and the Holder.
12. Notices. Except as set forth below, all notices and other
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communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company and the Holder
at the following addresses (or at such other address for either party as shall
be specified by like notice, provided that notices of a change of address shall
be effective only upon receipt thereof), and further provided that in case of
directions to amend the Registration Statement pursuant to or Section 6, a
Holder must confirm such notice in writing by overnight express delivery with
confirmation of receipt:
If to the Company: NutraMax Products, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
With a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx III, Esq.
If to the Holder: Xxxxxxx X. Xxxxxx
Graduate Health System
00xx xxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
In addition to the manner of notice permitted above, notices given pursuant to
Sections 1, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
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14. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the successors and assigns of the Company. This
Agreement may not be assigned by the Holder and any attempted assignment hereof
by the Holder will be void and of no effect and shall terminate all obligations
of the Company hereunder with respect to the Holder.
15. Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware applicable to contracts made
and to be performed wholly within said State.
17. Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMPANY:
NUTRAMAX PRODUCTS, INC.
/s/ Xxxxxx X. Xxxxx
____________________________________
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
HOLDER:
/s/ Xxxxxxx X. Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxx
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