AMENDMENT AND SUPPLEMENT
EXHIBIT
10.2
THIS
AMENDMENT AND SUPPLEMENT (this “Amendment and Supplement”) is
entered into as of November 12, 2016 (the “Effective Date”), to the
Registration Rights and Stock Restriction Agreement, dated as of
February 4, 2015 ( the “Agreement”) by and among Innovus Pharmaceuticals, Inc., a
Nevada corporation (“Acquiror”), and Novalere Holdings,
LLC, a Delaware limited liability company (“Stockholder”). Acquiror and
Stockholder each, a “Party,” and together, the
“Parties.”
RECITALS
WHEREAS, the
Parties have previously entered into the Agreement;
and
WHEREAS, the
Parties wish to amend the Agreement and enter into certain other
agreements with respect to the Merger Agreement (as defined in the
Agreement).
NOW, THEREFORE, in consideration of the
premises, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1.
Definitions. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in
the Agreement or the Merger Agreement.
2. Issuance
and Delivery of ANDA Consideration Shares. With reference to
Section 2.5(c) of the Merger Agreement, on the first Business Day
after the Effective Date (and notwithstanding the fact that the
ANDA Approval has not been obtained as of the Effective Date),
Acquiror shall deliver to Stockholder 12,947,655 shares of
Acquiror’s Common Stock, constituting the Target Stockholder
ANDA Consideration (as defined in the Merger Agreement), including
without limitation, all of the ANDA Escrow Shares (which shall not
be issued and delivered to the Escrow Agent, but rather issued and
delivered directly to the Stockholder without any further actions
by the Stockholder or any other party). The Parties stipulate and
agree that any and all shares of Acquiror’s Common Stock held
by Stockholder, including without limitation any Filing
Compensation Shares and Effectiveness Compensation Shares, if any,
shall be deemed “Registrable Securities” as such term
is defined in the Agreement. In addition, the Parties stipulate and
agree that, except for any restrictions and limitations pursuant to
applicable securities laws, the Shares are not subject to any
restrictions or limitations on sale, disposition or
transferability, whether pursuant to the Agreement, the Merger
Agreement, this Amendment and Supplement, or
otherwise.
3. Registration
Rights.
3.1 On
or before the Filing Deadline, as defined below, the Acquiror shall
prepare and file with the Securities and Exchange Commission
(“Commission”) a
registration statement on Form S-3, or such other form that may be
available to the Acquiror (“Registration Statement”), covering
the resale of all of the Registrable Securities. For purposes of
this Amendment, the Filing Deadline shall be the earlier to occur
of (i) the date which is thirty (30) days after the date that
Acquiror lists its Common Stock on the Nasdaq Stock Market
(“Nasdaq”) or
any other national securities exchange, or (ii) February 1, 2017.
In the event of a listing of Acquiror’s Common Stock on
Nasdaq or any other national securities exchange (the
“Listing”),
Acquiror shall promptly (and in any event within two (2) days) give
the Stockholder notice of such Listing. If a Registration Statement
covering all of the Registrable Securities is not filed by Acquiror
with the Commission on or prior to the Filing Deadline, for any
reason or for no reason whatsoever and whether or not the Listing
occurs, the Acquiror will issue and deliver to Stockholder, within
five (5) business days after the Filing Deadline, without any
payment by or cost or expense to Stockholder, as liquidated damages
and not as a penalty, that number of shares of Acquiror’s
Common Stock (“Filing
Compensation Shares”) equal to 10.0% of the aggregate
number of shares of Registrable Securities held by Stockholder as
of the Filing Deadline; it being understood and agreed that such
liquidated damages shall be in addition to, and not in lieu of, any
other right or remedy which may be available to Stockholder in law
or in equity (including, without limitation, any injunctive
relief). The Filing Compensation Shares shall be deemed Registrable
Securities for all intents and purposes, including without
limitation for purposes of the Agreement and this Amendment and
Supplement.
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3.2 Acquiror
shall use its best efforts to have the Registration Statement
declared effective as soon as possible following the Filing
Deadline, but in any event no later than May 15, 2017 (the
“Effectiveness
Deadline”), and shall promptly take any and all action
required to ensure that the Registration Statement shall become
effective no later than the Effectiveness Deadline, including
without limitation respond to any comment letters issued with
respect to the Registration Statement. The Parties agree and
acknowledge that unless the Registration Statement is declared
effective by the Commission on or before February 13, 2017, the
Registration Statement will require an amendment to include the
financial statements of the Acquiror for the fiscal year ending
December 31, 2016, which financial statements will not be available
until completion of the audit thereof, and the filing of the
Acquiror’s Annual Report on Form 10-K for the year ending
December 31, 2016, which Form 10-K is due to be filed on or before
March 31, 2017. Notwithstanding the immediately preceding sentence,
if the Registration Statement covering the resale of all of the
Registrable Securities is not declared effective by the Commission
on or prior to the Effectiveness Deadline (a “Registration Failure”), for any
reason or for no reason whatsoever (and whether or not Acquiror has
complied with its obligation to use best efforts to have the
Registration Statement effective by the Effectiveness Deadline),
the Acquiror will issue and deliver to Stockholder, within five (5)
business days after the Registration Failure, without any payment
by or cost or expense to Stockholder, as liquidated damages and not
as a penalty, that number of shares of Acquiror’s Common
Stock (“Effectiveness
Compensation Shares”) equal to 10.0% of the aggregate
number of shares of Registrable Securities held by Stockholder as
of the Filing Deadline; it being understood and agreed that such
liquidated damages shall be in addition to, and not in lieu of, any
other right or remedy which may be available to Stockholder in law
or in equity (including, without limitation, any injunctive
relief). The Effectiveness Compensation Shares shall be deemed
Registrable Securities for all intents and purposes, including
without limitation for purposes of the Agreement and this Amendment
and Supplement.
3.3 The
Parties agree and acknowledge that in the event the Registration
Statement is not filed by the Filing Deadline or declared effective
by the Effectiveness Deadline due to a force majeure event,
including the closing of the Commission or filing issues affecting
the Commission’s XXXXX system, each outside the control of
Acquiror (a “Force Majeure
Event”), the Filing Deadline or Effectiveness
Deadline, as the case may be, shall be the next business day
following the Force Majeure Event. The Parties further agree and
acknowledge that the issuance of Filing Compensation Shares and the
Effectiveness Compensation Shares under Sections 3.1 and 3.2 above
shall be cumulative, but shall not constitute the
Stockholder’s exclusive monetary remedy for failure to meet
the Filing Deadline or Effectiveness Deadline, as the case may be,
and shall not affect the right of the Stockholder to seek
injunctive relief or any other remedy; provided, however, any monetary award
shall be reduced by the value of the Filing Compensation Shares and
the Effectiveness Compensation Shares issued as a result of the
failure to file the Registration Statement by the Filing Deadline
or the failure of the Registration Statement to be declared
effective by the Effectiveness Deadline, as the case may be.
Acquiror shall be obligated to effect the registration pursuant to
this Section 3 irrespective of any demand or notice by
Stockholder.
4. No
Underwriters Cutbacks. Notwithstanding anything to the
contrary in the Agreement, including without limitation the
provisions of Section 2.3 of the Agreement, Acquiror and any
underwriters participating in any registration to which Section 3
above apply, shall be required to cause to be registered in such
registration and shall not be allowed to exclude from any such
registration, whether pursuant to Section 2.3 or otherwise, any and
all Registrable Securities held by Stockholder.
5. Certain
Acknowledgements and Waivers. Subject Acquiror’s
compliance with the provisions of this Amendment and Supplement,
Stockholder hereby waives any rights Stockholder had or now has,
pursuant to the Agreement or otherwise, to have any Registrable
Securities of Stockholder registered under the Form S-1
registration statement filed by Acquiror on August 9, 2016 or any
other registration statement filed prior to August 9, 2016, and
Stockholder hereby waives and releases Aqcuiror, directors, officer
and affiliates from any claims in connection with such waived
registration rights; it being expressly agreed, however, that this
waiver and release shall not be deemed an admission by Acquiror
that Acquiror was obligated to include any Registrable Securities
of Stockholder in such Form S-1 registration statement. In
addition, subject to Acquiror’s compliance with the
provisions of this Amendment and Supplement, Stockholder hereby
agrees that from the Effective Date through April 1, 2017,
Stockholder shall not exercise or attempt to exercise any S-1,
demand or other registration rights pursuant to Section 2.1 and 2.2
of the Agreement. Subject to Stockholder’s compliance with
the provisions of this Amendment and Supplement, Acquiror hereby
waives and releases Stockholder, its directors, officers and
managers, and any of the former stockholders, directors and
officers of Novalere FP, Inc., a Delaware corporation, from any
claims in connection with or resulting from any delay or
failure to obtain the ANDA Approval (as defined in the Agreement)
or from any delay in launching or failure to launch of the Target
Product (as defined in the Merger Agreement), including, without
limitation, any claims that any of the foregoing released persons
or entities has made any incorrect statements or representations or
failed to disclose any information to Acquiror or anyone acting on
its behalf; it being expressly agreed, however, that this waiver
and release shall not be deemed an admission by Stockholder or any
of the other foregoing released persons and entities that Novalere
FP, Inc., Stockholder or any of the other foregoing released
persons and entities made any incorrect statements or
representations or failed to disclose any information to Acquiror
or anyone acting on its behalf.
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6. General
Provisions. The provisions of Section 3 of the Agreement
shall apply to this Amendment mutatis mutandis. Except as expressly
amended and supplemented by this Amendment and Supplement, the
Agreement shall remain unchanged and in full force and is hereby
ratified in all respects.
[REMAINDER
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IN
WITNESS WHEREOF, the parties have executed this Amendment and
Supplement as of the date first written above.
By:
/s/ Xxxxxx
Xxxxx
Name:
Xxxxxx Xxxxx, Ph.D.
Title:
President and Chief Executive Officer
NOVALERE HOLDINGS,
LLC
By:
/s/ Xxxxxxx Xx
Xxxxxxxx
Name:
Xxxxxxx Xx Xxxxxxxx
Title:
Managing Member
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Managing Member
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Managing Member
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