Exhibit H
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of December 8, 1998, is by and among XXXXXX, INC., a Colorado corporation
(the "Company"), Zuellig Group N.A., Inc., a Delaware corporation ("ZGNA") and
Zuellig Botanicals, Inc., a Delaware corporation ("ZBI").
R E C I T A L S :
WHEREAS, on the date hereof, ZGNA has acquired an option (the
"Option") to acquire 2,000,000 share of Common Stock (as herein defined); and
WHEREAS, pursuant to the terms of an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of the date hereof, ZGNA and ZBI will
acquire 49% of the issued and outstanding shares of Common Stock, subject to
the terms and conditions of the Merger Agreement; and
WHEREAS, as a condition and inducement to ZGNA's pursuit of
the transactions contemplated by the Merger Agreement and the transactions
contemplated thereby, and in consideration therefor, the Company has agreed to
grant ZGNA certain registration rights, all in accordance with and subject to
the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual representations, warranties, covenants and agreements herein
contained, ZGNA and the Company hereby agree as follows:
SECTION 1. DEFINITIONS
The terms defined in this Section 1, whenever used herein,
shall have the following meanings for all purposes of this Agreement.
"Affiliate" means any Person or entity, directly or
indirectly, controlling, controlled by or under common control with such Person
or entity.
"Agreement" shall have the meaning set forth in the preamble
hereto.
"Board" shall mean the board of directors of the Company.
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which banks in the State of New York are not required or
authorized to close.
"Commission" shall mean the Securities and Exchange
Commission.
"Common Stock" shall mean the common stock, par value $0.001
per share, of the Company.
"Company" shall have the meaning set forth in the preamble
hereto.
"Demanding Holders" shall have the meaning set forth in
Section 2.2(b).
"Exchange Act" shall mean the Securities Exchange Act of
1934, an amended.
"Final Prospectus" shall have the meaning set forth in
Section 2.5(f).
"Holder" shall mean any holder of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 2.5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 2.5(c).
"Initiating Holder" shall mean any Holder or Holders who in
the aggregate are Holders of more than 50% of the then outstanding Registrable
Securities.
"Merger Agreement" shall have the meaning set forth in the
Recitals hereto.
"Option" shall have the meaning set forth in the Recitals
hereto.
"Other Stockholders" shall have the meaning set forth in
Section 2.1(b).
"Person" shall mean an individual, partnership, joint-stock
company, corporation, limited liability company, trust or unincorporated
organization, or a government, agency, regulatory authority or political
subdivision thereof.
"Register," "registered" and "registration" shall mean a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement.
"Registrable Securities" shall mean (i) the shares of Common
Stock issuable upon exercise of the Option, (ii) the
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shares of Common Stock issuable to ZGNA and ZBI pursuant to the Merger
Agreement, (iii) any additional shares of Common Stock, if any, acquired by
ZGNA or ZBI from the Company from time to time and (iv) any capital stock of
the Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Common Stock, if any, referred
to in clause (i), (ii) or (iii). As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities has been
declared effective under the Securities Act and such securities shall have been
sold in accordance with such registration statement, or (ii) such securities
shall have been sold pursuant to Rule 144 (or any successor provision) under
the Securities Act.
"Registration Expenses" shall mean all expenses incurred by
the Company in compliance with Sections 2.1 and 2.2 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company, which
shall be paid in any event by the Company).
"Securities Act" shall mean the Securities Act of 1933, an
amended.
"Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for each of the Holders.
"ZBI" shall mean Zuellig Botanicals, Inc., a Delaware
corporation and a wholly owned subsidiary --- of ZGNA.
"ZGNA" shall have the meaning set forth in the preamble
hereto.
SECTION 2. REGISTRATION RIGHTS
2.1. Requested Registration.
(a) Request for Registration. If the Company shall receive
from an Initiating Holder a written request that the Company effect any
registration with respect to all or a part of the Registrable Securities, the
Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders of Registrable
Securities; and
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(ii) as soon as practicable, use its diligent best
efforts to effect such registration (including, without limitation, the
execution of an undertaking to file post- effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act) as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within ten (10) Business Days after
written notice from the Company is given under Section 2.1(a)(i) above;
provided that the Company shall not be obligated to effect, or take any action
to effect, any such registration pursuant to this Section 2.1:
(A) In any particular jurisdiction in which
the Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations thereunder;
(B) After the Company has effected two (2)
such registrations pursuant to this Section 2.1 and such registrations have
been declared or ordered effective and the sales of such Registrable Securities
shall have closed; or
(C) If the Registrable Securities requested
by all Holders to be registered pursuant to such request have an anticipated
aggregate public offering price (before any underwriting discounts and
commissions) of less than $10,000,000; or
(D) If in the good faith judgment of the
Board, such registration would be seriously detrimental to the Company, the
Company shall have the right to delay or suspend the effectiveness of any
registration for up to 90 days but not more than once in any twelve month
period.
The registration statement filed pursuant to the request of
the Initiating Holders may, subject to the provisions of Section 2.1(b) below,
include other securities of the Company which are held by Persons who, by
virtue of agreements with the Company, are entitled to include their securities
in any such registration.
The registration rights set forth in this Section 2 shall be
assignable, in whole or in part, to any transferee of Registrable Securities
(who shall be bound by all obligations of this Section 2).
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(b) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 2.1.
If holders of securities of the Company other than
Registrable Securities who are entitled, by contract with the Company or
otherwise, to have securities included in such a registration (the "Other
Stockholders") request such inclusion, the Holders shall offer to include the
securities of such Other Stockholders in the underwriting and may condition
such offer on their acceptance of the further applicable provisions of this
Section 2. The Holders whose shares are to be included in such Registration and
the Company shall (together with all Other Stockholders proposing to distribute
their securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter or
underwriters selected for such underwriting by the Initiating Holders and
reasonably acceptable to the Company. Notwithstanding any other provision of
this Section 2.1, if the representative advises the Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the securities of the Company held by Other Stockholders shall be
excluded from such registration to the extent so required by such limitation.
If, after the exclusion of such shares, further reductions are still required,
the number of shares included in the registration by each Holder shall be
reduced on a pro rata basis (based on the number of shares held by such
Holder), by such minimum number of shares as is necessary to comply with such
request. No Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any of the Holders or any Other Stockholder
who has requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw therefrom
by written notice to the Company, the underwriter and the Initiating Holders.
The securities so withdrawn shall also be withdrawn from registration. If the
underwriter has not limited the number of Registrable Securities to be
underwritten, the Company may include its securities for its own account in
such registration if the representative so agrees and if the number of
Registrable Securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
2.2. Company Registration.
(a) Inclusion in Registration. If the Company shall determine
to register any of its Common Stock either for its own account or for the
account of a security holder or holders exercising their respective demand
registration rights, other than a registration relating solely to employee
benefit plans, or registration relating solely to a SEC Rule 145 transaction,
or a registration on any registration form which does not permit
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secondary sales or does not include substantially the same information as would
be required to be included in a registration statement covering the sale of
Registrable Securities, the Company will:
(i) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky or
other state securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made by the Holders within fifteen (15) days after receipt of the
written notice from the Company described in clause (i) above, except as set
forth in Section 2.2(b) below. Such written request may specify all or a part
of the Holders' Registrable Securities.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2.2(a)(i). In such event, the right of each of the
Holders to registration pursuant to this Section 2.2 shall be conditioned upon
such Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration shall
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2.2, if the representative
determines that marketing factors require a limitation on the number of shares
to be underwritten, the representative may (subject to the allocation priority
set forth below) limit the number of Registrable Securities to be included in
the registration and underwriting. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated in the following manner: the securities of the Company held by Other
Stockholders of the Company (other than Registrable Securities and other than
securities held by holders who by contractual right demanded such registration
("Demanding Holders")) shall be excluded from such registration and
underwriting to the extent required by such limitation, and, if a limitation on
the number of shares is still required, the number of shares that may be
included in the registration and underwriting by each of the Holders and
Demanding Holders shall be reduced, on a pro rata basis (based on the number of
shares held by such Holder), by such minimum number of shares as is necessary
to comply with such limitation. If any of the Holders or any Other Stockholder
disapproves of the terms
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of any such underwriting, such person may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
2.3. Expenses of Registration.
Except as provided in the next sentence, all Registration
Expenses incurred in connection with any registration, qualification or
compliance pursuant to this Section 2 shall be borne by the Company, and all
Selling Expenses shall be borne by the holders of the securities so registered
pro rata on the basis of the number of their shares so registered. If a
registration has been requested pursuant to Section 2.1 and a registration
statement is declared effective by the Securities and Exchange Commission, but
the sales of the Registrable Securities does not close, the Holders are not
considered to have used a requested registration under Section 2.1(a)(ii)(B),
but after the second requested registration which results in the filing of a
registration statement which is declared effective (whether or not sales
occur), the holders of the Registrable Securities in any subsequent requested
registration will pay all Registration Expenses and Selling Expenses pro rata
on the basis of the number of shares so registered.
2.4. Registration Procedures.
In the case of each registration effected by the Company
pursuant to this Section 2, the Company will keep the Holders, as applicable,
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will:
(i) keep such registration effective for a period of one
hundred twenty (120) days or until the Holders, as applicable, have completed
the distribution described in the registration statement relating thereto,
whichever first occurs; provided, however, that such 120-day period shall be
extended for a period of time equal to the period during which the Holders, as
applicable, refrain from selling any securities included in such registration
in accordance with provisions in Section 2.8 hereof;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to time may
reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such registration at any time when a prospectus relating thereto is required to
be delivered under the Securities Act of 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 a
material fact required to be stated therein or
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necessary to make the statements therein not misleading in the light of the
circumstances then existing; and
(iv) furnish, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (1) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
participating in such registration, addressed to the underwriters, if any, and
to the Holders participating in such registration and (2) a letter, dated as of
such date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders participating in such
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders participating in such
registration.
2.5. Indemnification.
(a) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each person
controlling each of the Holders, with respect to each registration which has
been effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any 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 any violation by
the Company of the Securities Act or any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse each of the Holders, each of its officers, directors and
partners, and each person controlling each of the Holders, each such
underwriter and each person who controls any such underwriter, for any legal
and any other expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission based upon
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written information furnished to the Company by the Holders or underwriter and
stated to be specifically for use therein.
(b) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter, each Other Stockholder and other Holders and
each of their officers, directors, and partners, and each person controlling
such other Stockholder against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made by such Holder,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements by such Holder therein
not misleading, and will reimburse the Company and such Other Stockholders and
other Holders, directors, officers, partners, persons, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder for use therein; provided, however, that the
obligations of each of the Holders hereunder shall be limited to an amount
equal to the net proceeds to such Holder of securities sold as contemplated
herein.
(c) Each party entitled to indemnification under this Section
2.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of counsel shall be at the expense of the
Indemnifying Party), and provided, further, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Section 2 unless the Indemnifying Party is
materially prejudiced
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thereby. No Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, which shall not be
unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 2.5
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense 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 such
loss, liability, claim, damage or expense, 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public offering
contemplated by this Agreement are in conflict with the foregoing provisions,
the provisions in such underwriting agreement shall be controlling.
(f) The foregoing indemnity agreement of the Company and the
Holders is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage from a statement or omission made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with
the Commission at the time the registration statement in question becomes
effective or the amended prospectus filed with the Commission pursuant to
Commission Rule 424(b) (the "Final Prospectus"), such indemnity agreement shall
not inure to the benefit of an underwriter if a copy of the Final Prospectus
was furnished to such underwriter and was not furnished by such underwriter to
the person asserting
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the loss, liability, claim or damage at or prior to the time such action is
required by the Securities Act.
2.6. Information by the Holders.
Each of the Holders holding securities included in any
registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Section
2.
2.7. Rule 144 Reporting.
With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, so long as the Company is
required to file reports pursuant to the Exchange Act, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144;
(ii) use its best efforts to 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 at any time after it has become subject to
such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company as to
its compliance with the reporting requirements of 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
as the Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Holder to sell any such securities
without registration.
2.8. "Market Stand-off" Agreement.
Each of the Holders agrees, if requested by the Company and
an underwriter of Common Stock (or other securities) of the Company, not to
sell, short sell, or purchase or sell derivative securities in respect of
Common Stock, or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Holder during the 90-day period
following the effective date of a registration statement of the Company filed
under the Securities Act, provided that all executive officers and directors of
the Company enter into similar agreements other than in respect of securities
included in such registration.
If requested by the underwriters, the Holders shall execute a
separate agreement to the foregoing effect. The
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Company may impose stop-transfer instructions with respect to the shares (or
securities) subject to the foregoing restriction until the end of said 90-day
period. The provisions of this Section 2.8 shall be binding upon any transferee
who acquires Registrable Securities, whether or not such transferee is entitled
to the registration rights provided hereunder.
2.9. Termination.
The registration rights set forth in this Section 2 shall not
be available to any Holder if, in the opinion of counsel to the Company, all of
the Registrable Securities desired to be sold by such Holder could be sold in
any 90-day period pursuant to Rule 144 under the Securities Act (without giving
effect to the provisions of Rule 144(k)).
2.10. Merger Agreement.
The obligation of the Company to register Registrable
Securities is subject to Section 6.9 of the Merger Agreement in respect of
limitation on sales of Registrable Securities.
2.11. Legend.
The Company may place the following legend on certificates of
Registrable Securities: "The shares represented by this certificate are subject
to a Registration Rights Agreement, dated as of December 8, 1998, as amended
from time to time, a copy of which may be obtained at the office of the
Company."
SECTION 3. MISCELLANEOUS
3.1. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado applicable to contracts made
and to be performed entirely within such State.
3.2. Paragraph and Section Headings.
The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
3.3. Notices.
(a) All communications under this Agreement shall be in
writing and shall be delivered by hand, by facsimile or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
(1) if to ZGNA or ZBI, at 0000 Xx Xxxxxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxxxxxxx 00000-0000 (facsimile: (000) 000-0000), marked
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for attention of President, or at such other address as ZGNA or ZBI may have
furnished the Company in writing (with a copy to Xxxxxxx Xxxx & Xxxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq.
(facsimile: 212-728-8111), or at such other address it may have furnished the
Company in writing), or
(2) if to the Company, at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (facsimile: (000) 000-0000), marked for the attention of Xxxx
Xxxxx, or at such other address as the Company may have furnished Investor in
writing (with a copy to Xxxxxxxx, Xxxxx & Xxxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, Esq. (facsimile:
303-449-5426) or at such other address as it may have furnished in writing to
the Investor and the Escrow Agent), or
(b) Any notice so addressed shall be deemed to be given: if
delivered by hand or by facsimile, on the date of such delivery; if delivered
by courier, on the first Business Day following the date of the delivery to the
courier; and if mailed by registered or certified mail, on the third Business
Day after the date of such mailing.
3.4. Expenses and Taxes.
Whether or not the Closing shall have occurred, each party
shall pay its own fees and expenses incurred in connection with the
transactions contemplated hereby.
3.5. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties.
3.6. Entire Agreement; Amendment and Waiver.
This Agreement and the agreements attached as Exhibits hereto
constitute the entire understandings of the parties hereto and supersede all
prior agreements or understandings with respect to the subject matter hereof
among such parties. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and holders of the majority of the Registrable Securities. No
course of dealing between the Company and any holder of the Registrable
Securities nor any delay in exercising any rights hereunder shall operate as a
waiver of any rights of either party hereto.
3.7. Severability.
In the event that any part or parts of this Agreement shall
be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination
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shall not effect the remaining provisions of this Agreement which shall remain
in full force and effect.
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3.8. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
XXXXXX, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: CEO
ZUELLIG GROUP N.A., INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
ZUELLIG BOTANICALS, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary and Treasurer
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